2201197 (Migration)

[2024] AATA 672

2201197 (Migration) [2024] AATA 672 (5 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2201197

MEMBER:Maxina Martellotta

DATE:5 March 2024

PLACE OF DECISION:  Perth

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(2) of Schedule 2 to the Regulations;

· cl 309.221 of Schedule 2 to the Regulations.

Statement made on 05 March 2024 at 12:46pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – visa applicant currently refugee in third country – validly married in fourth country – limited financial and social aspects of relationship and nature of household while living in different countries – nature of commitment – regular communication and financial support – family, social and church recognition – consistent evidence and supporting statements – member of family unit young adult daughter of review applicant – forced national service – step-relationship between visa applicants – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

CASE
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 Home Affairs on 18 January 2022 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 13 May 2019 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 (Cth) (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 they were not satisfied that at the time of application the applicant was the spouse of their sponsor.

4. The review applicant appeared before the Tribunal on 22 November 2023 to give evidence and present arguments. At that hearing the Tribunal also received oral evidence from [Mr A]. At the conclusion of the hearing, the presiding member advised that the hearing would resume at a later date. The matter was reconstituted to a different member after the commencement of the hearing.[1] On 6 February 2024 the Tribunal convened a directions hearing attended by the review applicant. On 23 February 2024 the Tribunal resumed the hearing of the application. At that hearing the Tribunal received further oral evidence from the review applicant and also from the visa applicant.

   [1] Section 19D(2) of the Administration Appeals Tribunal Act 1975 (Cth)

5. The Tribunal was assisted by an interpreter in the English and Tigrinya languages.

6. The Tribunal also considered written submissions, statutory declarations and other documents submitted to the Tribunal by the review applicant and found in the Department file. The review applicant provided the Tribunal with a copy of the delegate’s decision. In the Tribunal’s assessment the review applicant and primary visa applicant provided consistent evidence regarding the circumstances of their relationship which was supported by documents provided to the Department and to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

8. The review applicant was born in [Year] in Eritrea. He arrived in Australia in [Year] and was granted a humanitarian visa. At the time of the visa application, he was an Australian permanent resident. At hearing the review applicant advised he had applied for Australian citizenship, which was granted on 18 January 2024. This is consistent with Department records which confirm citizenship was approved on that date. The review applicant was previously married and he was divorced from that person in [Year][2].  The primary visa applicant was born in [Year] in Eritrea. She is currently a refugee in [Country 1]. The secondary visa applicant was born in [Year] in Eritrea. She is the biological child of the review applicant. She is also a refugee in [Country 1].

   [2] A certificate provided by the Registrar of WA Births, Deaths and Marriages confirmed that there was no registered marriage in the name of the review applicant from [Date] to [Date].

9. The visa application claims that the visa applicant and review applicant were married in [Country 2] in [Year]. The visa applicant is registered as a refugee by the UNHCR and is currently residing in [Country 1].

   Whether the parties are in a spouse or de facto relationship.

10. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who at the time of application was a permanent resident and at the time of decision is an Australian citizen.

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

    Are the parties validly married?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. According to the evidence provided at hearing, the review applicant and visa applicant married in [Year]. A copy of an Eritrean [Church] certified marriage certificate was included in the Department documents. It is dated [Date], which is the date the review applicant and visa applicant claim they were married. It certifies that they were married in [Country 2].

13. In evidence, the review applicant explained that he arranged for the wedding to take place in [Country 2] as it was not safe for him to travel to Eritrea. He paid the registration fee, and the marriage was officiated by a minister of the [Church] in the presence of witnesses. According to the [Country 2 Authority], religious marriages are recognised in [Country 2].[3]

    [3] [Reference]

14. Photographs of the wedding ceremony were included in materials provided to the Department and to the Tribunal. The review applicant explained that as it was his second marriage and the ceremony was held in [Country 2], he and the visa applicant were unable to have a large number of guests or family in attendance. At hearing the review applicant identified the persons in the photographs as local witnesses and the visa applicant.

15. In determining whether a marriage is valid for the purposes of the Act, consideration is to be given to the Marriage Act 1961 (Cth) (the Marriage Act). The Marriage Act defines marriage as the solemnised union of two people, to the exclusion of all others, voluntarily entered into for life.[4] The Marriage Act also provides for recognition of foreign marriages. In summary, foreign marriages recognised under the law of the country in which they are solemnised will be recognised in Australia.[5] There are exclusions to recognition, namely where:

    ·either of the parties was married to someone else and that other marriage was recognised in Australia as valid;

    ·the parties are within a prohibited relationship;

    ·the consent of either of the parties is not a real consent;

    ·either of the parties was not of marriageable age, where one party was domiciled in Australia at the time of the marriage;

    ·the marriage is voidable under the law under which the marriage took place.

    [4] Sections 5, 23A, 23B, 40, 41, 48 and 73 of the Marriage Act

    [5] Part VA of the Marriage Act

16. On balance, taking into consideration the evidence presented, the Tribunal is satisfied and finds that the review applicant and primary visa applicant were married on [Date]. The Tribunal concludes that they were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

17. The Tribunal has had regard to the evidence provided relating to the financial aspects of the relationship, including:

    ·joint ownership of real estate or other major assets and any joint liabilities;

    ·the extent of any pooling of financial resources, especially in relation to major financial commitments;

    ·whether one person in the relationship owes any legal obligation in respect of the other; and

    ·the basis of any sharing of the day-to-day household expenses.

18. The review applicant and the visa applicant provided the following evidence.

    Joint ownership of real estate or other major assets and joint liabilities

19. They do not own and have not owned any major assets jointly. This is because they have not had the opportunity to do so as they are living in separate countries. The primary visa applicant is a refugee and does not own any assets.

20. They have not and do not service any joint liabilities.

    Pooling of financial resources and liabilities

21. The review applicant and primary visa applicant provided consistent evidence, which is as follows:

    a)Prior to marriage, the primary visa applicant worked in a factory. She ceased working after the marriage.  The review applicant works on a casual basis for a business in Australia.

    b)Since the marriage, the review applicant and other members of his family have financially supported both the primary and secondary visa applicants.

    c)The review applicant stated that he and other family members regularly send money, which is used to pay for the primary and secondary visa applicants’ accommodation, and day-to-day living expenses.

    d)The money that is sent to the primary and secondary visa applicants is received into [a Country 1] bank account held in their (the visa applicants’) joint names.

    e)Their evidence is that because of their circumstances there has been no opportunity for them to pool respective resources. 

    f)As they live in two different countries they have not opened or operated a joint bank account.

    Whether one person in the relationship owes any legal obligation in respect of the other

22. Apart from their marriage, neither person owes any legal obligation to the other.

    Any sharing of the day-to-day household expenses

23. Due to the fact of their physical separation there has been no opportunity to share household expenses. The review applicant sends money to the primary and secondary visa applicants, which is used to meet their day-to-day expenses.

24. The review applicant provided evidence of money transfers dating from 2019 to 2023. In response to questions asked by the Tribunal, the review applicant explained that when the primary visa applicant was still living in Eritrea, he was unable to send her money through official means due to his concerns about this coming to the attention of authorities. He arranged for money to be passed on through third parties he trusted. He said that this is why evidence of regular money transfers commenced from 2019, which was when the primary visa applicant crossed the border into [Country 1].

    Nature of the household

25. The Tribunal has had regard to the evidence as to the nature of the household including joint responsibility for the care and support of children, the parties’ living arrangements, and any sharing of the responsibility for housework.

    Joint responsibility for the care and support of children

26. The review applicant stated that he is the father of the secondary visa applicant. The secondary applicant lives with the primary visa applicant.  The review applicant and primary visa applicant do not have any joint responsibility for the care and support of any dependent children.

    Living arrangements and housework

27. The review applicant and visa applicant told the Tribunal that the only opportunity that they have had to live together was for three months following their marriage.  They rented a property in [Country 2] and lived together before the review applicant was required to return to Australia. The review applicant provided the Tribunal a receipt (dated [Date]) for the rental of that property. In that time, they shared the day-to-day household tasks. They have spoken of their plans should the visa be granted. It is their intention to live together in the review applicant’s home.

28. The review applicant otherwise lives in his home in Australia.  The primary visa applicant left Eritrea with the secondary visa applicant, and they are now living in a rental property in [Country 1] where they have been recognised as refugees.  The review applicant meets the rental cost of that residence.

    Social aspects of the relationship

29. The Tribunal has had regard to the evidence provided, namely, whether the parties represented themselves to others as being married to each other, the opinion of their friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake joint social activities.

    Representation to others

30. The review applicant and visa applicant confirmed that their respective family members and friends were all aware of their marriage. They are recognised and acknowledged as a married couple.

31. The review applicant provided a letter from his employer which notes that he works on a casual basis with their organisation and that he is seeking to bring his wife and adult child to Australia. He also provided a letter from his church, which states that they are supporting the review applicant in his endeavours to have his wife and child come to Australia.

32. The review applicant’s son provided evidence about his father’s marriage and relationship with the primary visa applicant.

33. The review applicant told the Tribunal that his adult children from his first marriage were supportive of him re-marrying as they want him to have the support of a spouse.

    Opinion of their friends and acquaintances about the nature of the relationship

34. Statutory declarations were provided to the Department from two acquaintances.  One of these, [Mr B], declares that he has known the review applicant for seven years and they are close friends. The review applicant told him of his intention to marry. He states that he contacted the review applicant and primary visa applicant on their wedding day calling them in [Country 2] to offer his congratulations.

35. A second statutory declaration provided by a friend, [Mr C], who goes to the same church as the review applicant, states that he was invited to attend the wedding in [Country 2] but for personal reasons could not attend. He states that the review applicant often speaks about his wife and daughter who are overseas.

    Any basis on which the parties plan and undertake joint social activities

36. Opportunities to undertake joint social activities have been limited.  The review applicant and primary visa applicant stated in their evidence that they spent three months together following the wedding.

37. Since then, they have been in regular communication. They talk about their day-to-day activities and their plans.

    Nature of the persons’ commitment to each other

    Duration of the relationship and length of time they have lived together and emotional support.

38. The Tribunal has had regard to the evidence provided in relation to the nature of the parties’ commitment to one another, including the duration of the 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.

39. The review applicant and visa applicant provided consistent evidence about how they first met and how their relationship progressed. Their evidence was as follows:

    a)They first met in about [Year]. At the time the review applicant was still living in Eritrea and married to his first wife. The primary visa applicant would come to his business to buy [Product].

    b)The review applicant fled from Eritrea and eventually settled in Australia on a humanitarian visa.

    c)Following his divorce, he started to think about the primary visa applicant.

    d)In [Year] he asked his brother, who still lives in Eritrea, to approach the primary visa applicant to ask if she would be interested in a relationship with him. His brother did this.

    e)The review applicant said he decided to do this because he was aware that the primary visa applicant was not married but he recalled her as being a good person.

    f)The primary visa applicant confirmed that she was approached by the review applicant’s brother. She said at first she was surprised as she understood the review applicant was married and living in Australia, but the brother explained that the review applicant was divorced and wanting to find a new partner. She told the brother to let the review applicant know that she was interested.

    g)They commenced communicating after that initial approach and decided to marry.

    h)The review applicant arranged and paid for the primary visa applicant to fly to [Country 2] for the wedding. After their marriage, they lived together for three months. In that time, the review applicant asked the primary visa applicant if she could contact his daughter who was in Eritrea and help her to leave that country.  His daughter had been recruited into forced national service and he had concerns for her wellbeing.

    i)The primary visa applicant stated that she considered the review applicant’s daughter to be her stepdaughter and she agreed to find her and support her.

    j)After the review applicant returned to Australia, the primary visa applicant returned to Eritrea and contacted the secondary visa applicant. Since then, she and the review applicant’s daughter have lived together. Their original plan was to leave Eritrea but they were prevented from doing so until 2019. They finally were able to leave and were granted refugee status in [Country 1]. It was only at this point that they were able to lodge the partner visa applications.

    k)The review applicant stated that visiting the primary visa applicant and his daughter in [Country 1] is not a viable option for him as due to connections between [Country 1] and Eritrea, he feels he would be at risk by travelling to that country.

    l)Despite not physically seeing each other since [Year], they have remained committed to the relationship. This is demonstrated by the regular contact, the fact that the review applicant’s daughter has lived with the primary via applicant since their marriage and their sustained attempts to have a visa granted which will allow them to be reunited.

    m)They have discussed their long term plan to have the family reunited in Australia. They want to live together as they age and provide each other support and companionship.

1. The Tribunal asked the review applicant if the main reason for his marriage to the primary visa applicant was that he wanted someone to provide support to his daughter and to assist her to leave Eritrea. The review applicant stated that this was not the case. He married because he wanted to re-partner, and he believed that the primary visa applicant was a good person.

   TRIBUNAL FINDINGS

2. In this matter, the Tribunal makes the following findings of fact. The review applicant and visa applicant at the time of application and at the time of decision:

   a)Do not and have not jointly owned any significant assets.

   b)Do not and have not serviced any joint liabilities.

   c)The review applicant has, since the marriage, been the person who has financially supported the primary visa applicant through regular payment transfers to meet the primary and secondary visa applicants’ day-to-day household and living expenses.

   d)The review applicant and primary visa applicant lived together for three months following their marriage. Since that time, they have maintained two households: one in [Country 1] and one in Australia.

   e)Their mutual intention, should the visa be granted, is for the review applicant and primary visa applicant to reunite and live in the review applicant’s home in Australia.

   f)The review applicant and primary visa applicant have maintained regular contact.

   g)The review applicant and visa applicant have represented themselves as spouses to family and friends.

   h)Friends have expressed the opinion that the visa applicant and review applicant are in a genuine spousal relationship.

   i)Opportunities to undertaken joint social activities was limited to the time following their marriage when the review applicant and primary visa applicant lived together for three months.

   j)The review applicant and primary visa applicant first met in Eritrea in [Year] before reconnecting in [Year]. They decided to commit to marriage and were married in [Year].

   k)Apart from living together for three months following their marriage, they have not physically been together since that time.

   l)The primary visa applicant has taken on a role to provide support to the review applicant’s daughter who is also the secondary visa applicant. They live together and travelled together from Eritrea. They both reside in [Country 1] with refugee status.

   m)Describe their relationship as long term and committed to working towards reunification so that they can live together as a single household.

   Conclusions – the primary visa applicant

3. Having had the opportunity of observing and testing the review applicant’s and visa applicant’s evidence at hearing and taking into account the materials and documents before the Tribunal, as well as its findings of fact, the Tribunal is satisfied that the evidence supports the conclusion that the review applicant and the visa applicant at the time of application and at the time of decision have a mutual commitment to a shared life to the exclusion of all others and that it is a genuine and continuing relationship.

4. In coming to this conclusion, the Tribunal notes that the review applicant and primary visa applicant have been physically separated since [Year], however the Tribunal is satisfied that this is due to reasons beyond their control. Essentially, the review applicant is unable to return to Eritrea, and the Tribunal accepts he holds genuine concerns about travel to [Country 2][6]. The primary visa applicant was unable to leave Eritrea following the marriage until finally being able to cross the border into [Country 2] in 2019 where she is currently living as a refugee.

   [6] Human Rights Watch Eritrea - (notes reports of forced returns of refugees from neighbouring countries including [Country 2].

5. Despite that being the situation, the evidence demonstrates that the review applicant and primary visa applicant have remained committed. They are in regular contact; the review applicant is providing financial support and the primary visa applicant has taken on a stepmother role with respect to the secondary visa applicant. They have plans for their future, which are to be reunited and live together in the same household.

6. While there is no joint ownership of major assets or liabilities and there is no pooling of finances, this needs to be seen in the context of the circumstances of this case. There is  however evidence that the review applicant and primary visa applicant represent themselves as being in a spousal relationship and they are considered as such by members of their family, community and acquaintances.

7. The Tribunal is satisfied that the review applicant and primary visa applicant have demonstrated that they have maintained a joint commitment to a shared life. In this matter, having considered all the relevant circumstances and evidence, the Tribunal is satisfied that the requirements are met both at the time of application and at the time of decision.

8. The Tribunal is also satisfied that, since their marriage, the review applicant and primary visa applicant have lived together and not separately or apart on a permanent basis. In reaching this conclusion, the Tribunal notes that for the reasons noted above, they have not been able to reside in the same country since [Year]; however, the evidence supports a conclusion that this is not a permanent arrangement.  For these reasons, the Tribunal is satisfied and finds that:

   a)The review applicant and the primary visa applicant at the time of application and at the time of decision have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family.

   b)At the time of the visa application the review applicant was a permanent resident and at the time of decision, the review applicant is an Australian citizen, who was and is the spouse of the primary visa applicant and continues to meet the definition of ‘spouse’.

   c)On the basis of the above, the Tribunal is satisfied that the requirements of s 5F are met at the time the visa application was made and at the time of this decision.

9. Therefore, the visa applicant meets cl 309.211(2) and cl 309.221.

   Conclusions – the secondary visa applicant

10. In this case the delegate has refused the secondary visa applicant’s application because they were not satisfied that she is a member of the family unit of a person who has satisfied the primary criteria in Subdivision 309.21. 

11. As noted, the criteria in dispute in this matter pertained to whether the primary visa applicant satisfied the requirements in cl 309.211(2) and cl 309.221. For that reason, the Tribunal has limited its review to those disputed criteria and has not otherwise addressed the remaining criteria relevant to Subdivision 309.21.

12. On this basis the Tribunal concludes that the secondary visa applicant’s application is to be reconsidered taking into consideration the Tribunal’s findings that the primary visa applicant satisfies cl 309.211(2) and cl 309.221.

13. Given the findings above, the appropriate course is to remit the application for the primary visa applicant to the Minister to consider the remaining criteria for a Subclass 309 visa and to remit the application for the secondary visa applicant so that the secondary visa application can be reconsidered taking into account the Tribunal’s findings relevant to the primary visa application.

    DECISION

14. 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(2) of Schedule 2 to the Regulations;

    ·cl 309.221 of Schedule 2 to the Regulations.

    Maxina Martellotta
    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).