Abate (Migration)

Abate (Migration) [2020] AATA 1117 (1 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Tirengo Abate
VISA APPLICANTS:  Mr Kassahun Argaw Delkero
Ms Yeabsira Kassahun Argaw
Ms Nardos Biftu Bitew
Miss Melat Biftu Bitew
Mr Fitsum Kassahun Argaw
CASE NUMBER:  1723073
DIBP REFERENCE(S):  BCC2016/1500857 OSF2016/046777
MEMBER:David Crawshay
DATE:1 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Statement made on 01 April 2020 at 11:15am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – nature of commitment – validly married in home country a month after meeting – visa applicant adopted review applicant’s nieces – financial, household and social aspects of relationship – limited and inconsistent evidence of social aspects and travel – limited future plans – members of a family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 359A
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 309.211(2), 309.221, 309.311, 309.321
CASE
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 September 2017 to refuse to grant the visa applicants’ Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The primary visa applicant (the visa applicant) is Mr Kassahun Argaw Delkero, an Ethiopian citizen. The secondary visa applicants (the secondary applicants) are Ms Yeabsira Kassahun Argaw, Ms Nardos Biftu Bitew, Miss Melat Biftu Bitew, Mr Fitsum Kassahun Argaw. Ms Argaw and Mr Argaw are the visa applicant’s children by birth, and the two Bitew sisters are his daughters by adoption as well as being the review applicant’s nieces.
The visa applicant applied for the visa on 18 April 2016 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) because the visa applicant did not meet the definition of spouse under s.5F of the Act. Specifically, the delegate stated that he found “insufficient evidence to support the nature of the parties’ commitment to each other”.
The review applicant appeared before the Tribunal on 24 July 2019 to give evidence and present arguments (initial hearing). The review applicant was required to leave early due to her son, and it was necessary to conduct another hearing (resumed hearing). The resumed hearing was held on 3 September 2019, and the Tribunal received oral evidence from the review applicant and the visa applicant (the parties).
The Tribunal was assisted at both hearings by interpreters of the Amharic and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The review applicant claims to have begun a relationship with a Mr Leslie George Mill in October 2005. Mr Mill sponsored her to come to Australia under a prospective marriage visa (TO-300) in February 2008 and she arrived in March 2008. In April 2008, the pair ended their relationship and Mr Mill withdrew his sponsorship at the same time as the review applicant applied for a protection visa (XA-866). The visa was granted in January 2010.
In September 2008, the review applicant claims to have begun a relationship with a Mr Mohamed Ibrahim Hassan, which was ended in October 2009. In March 2010, she gave birth to a son, and Mr Hassan is listed as his father.
In January 2013, the review applicant was granted Australian citizenship, and in early September 2013, she travelled to Ethiopia. It was here, at a coffee shop in Hawassa, that the parties claim to have first met on 20 September 2013. They married on 19 October 2013, before the review applicant returned to Australia on 10 December 2013.
In October 2014, custody of two nieces of the review applicant was awarded to the visa applicant after their mother (who was the review applicant’s sister) died in June 2013. Their father had earlier died in November 2012.
The review applicant returned to Ethiopia in 2016 for around 43 days, during which time the visa application was lodged. She has not travelled back to Ethiopia since.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is the spouse of the review applicant under s.5F of the Act.
Whether the parties are in a spouse or de facto relationship
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.
‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. For persons to be in a married relationship, they must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).
In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3) (which is extracted in the attachment to this decision). Each of the specific matters contained in r.1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a). The Tribunal has sighted a certificate for a marriage that took place on 19 October 2013.
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship
The Tribunal has considered any joint ownership of real estate or other assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party, and any sharing of day-to-day household expenses in assessing the financial aspects of the relationship.
The parties have submitted little evidence of any joint ownership of real estate of other assets, any joint liabilities, or any pooling of financial resources. Specifically, the review applicant has not remitted money to the visa applicant, as she claims that the visa applicant has his own income. At hearing, the review applicant gave evidence that the visa applicant worked in a Department of Agriculture job. Given this fact, and in light of the review applicant’s modest financial situation, the Tribunal accepts the review applicant’s explanation and gives this aspect no adverse weight which it may have ordinarily given.
The Tribunal has been provided with a document titled “Power of Attorney Document” which lists the principal as “Mrs. Tringo Tadesse Ababate” and the agent as “Mr. Kassahun Aragaw Delkero” and is dated 4 May 2016. Although the review applicant’s name appears to have been misspelt on the document (although it was spelt correctly under the signature block), the Tribunal is willing to accept that the document is genuine based on its being a translation of a document which was most likely in Amharic script. The Tribunal accepts that this document creates legal obligations as between the parties and gives it some weight in its overall consideration.
The review applicant said that the parties share day-to-day household expenses when they are together in Ethiopia. The Tribunal accepts this evidence.
The evidence of the financial aspects of the relationship is overall limited. However, given that the parties live in separate countries, the Tribunal accepts that they have had limited scope to attempt any real integration of their finances. The Tribunal does not accord weight either way to this evidence.
Nature of the household
The Tribunal has considered any joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of housework in assessing the nature of the household.
The review applicant has one son. The visa applicant has a daughter and a son, as well as two adopted daughters who are also the review applicant’s nieces – the Bitew sisters. In a letter dated 20 January 2017, the review applicant said that the visa applicant has been assisting her in their care and support. The Tribunal has also sighted a document dated 6 October 2014 that purports to be from the Hawassa City First Instance Court naming the visa applicant as the legal guardian of the Bitew sisters. While the Tribunal makes no finding as to whether the the Bitew sisters are dependent children of the visa applicant under the Regulations, it accepts that the parties both have a role to play in their care and support. This evidence is given weight by the Tribunal.
Turning to the living arrangements of the parties, the review applicant told the Tribunal that the parties lived together during two periods – one in 2013 after the parties were married for nearly two months and another in 2016 for around 43 days. The parties claim to have lived mainly at the visa applicant’s house in Hawassa. A letter was submitted from three of the visa applicant’s friends dated 15 September 2017 saying that the parties lived together while the review applicant was in Ethiopia, and this letter is given weight. At other times, the parties claim to have stayed at hotels and other shared accommodation. In support of these claims, the parties have submitted letters from two hotels confirming that the parties stayed at their properties in April 2016. Based on this evidence, the Tribunal accepts that the parties may have stayed together during these periods.
Dealing lastly with the sharing of housework, the review applicant claims housework was performed by a servant who lived with the visa applicants, including cooking. This evidence is given weight by the Tribunal.
Social aspects of the relationship
The Tribunal has considered whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake joint social activities in assessing the social aspects of the relationship.
The review applicant has previously submitted photographs of the parties’ wedding ceremony, although these photographs are limited in number. They show the parties and several other guests. The parties told the Tribunal at the resumed hearing that some members of both families attended, although the parties differed when recalling who attended. The review applicant told the Tribunal at the resumed hearing that her parents did not attend – she said that her father was sick and her mother was looking after her son. Other photographs were submitted of the parties at an event, although these only show the parties. Still other photographs were provided at the Department stage – these show the visa applicant and the secondary applicants, but do not show the review applicant. These photographs and the evidence of the parties in relation to their wedding are given little weight in the Tribunal’s consideration of whether the parties represent themselves to other people as being married to each other.
Two Form 888 statutory declarations have been submitted from acquaintances of the review applicant – Ms Betelehem Chernt and Ms Fartun Abdi. These declarations, which were submitted in January 2016, provide a limited insight into the parties’ relationship and why the declarants believe it is genuine and continuing. Specifically, the Tribunal notes that they rely to a large extent on information given by the review applicant herself. The Tribunal asked the review applicant to confirm whether Ms Chernt has met the visa applicant and she said no. The Tribunal informed the review applicant that Ms Chernt had declared in her statutory declaration that she had met the visa applicant in person. When asked to respond to this inconsistency, the review applicant told the Tribunal that this happened a long time ago and she (the review applicant) may have forgotten about these things. The Tribunal has doubts about the contents of Ms Chernt’s declaration given this inconsistency. This fact, and the overall general nature of the declarations and the fact that they rely heavily on second-hand information from the review applicant, mean that the Tribunal accords them limited weight. Elsewhere, the Tribunal has received a letter from three friends of the visa applicant which attests to the genuineness of the relationship. The Tribunal accepts this letter and gives it weight. However, the Tribunal notes it otherwise has very little evidence to show the opinions of friends and acquaintances about the nature of the parties’ relationship.
Turning lastly to the basis on which the parties plan and undertake joint social activities, the review applicant told the Tribunal at the resumed hearing that the parties would go to visit family and his friends when she was over in Ethiopia. As above, the parties have submitted photographs of themselves together at what appears to be a social function, but no other parties are seen in these photographs. There is otherwise little evidence to substantiate this claim. This evidence is given little weight by the Tribunal.
The Tribunal has carefully considered the evidence of the social aspects of the relationship but is not satisfied that it indicates the parties’ relationship is genuine and continuing.
Nature of parties' commitment to each other
The Tribunal has considered the duration of the parties’ relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term in assessing the nature of the parties’ commitment to each other.
The review applicant was asked by the Tribunal about the particulars of her first meeting with the visa applicant. At the initial hearing, she said that when she met the visa applicant in September 2013, the parties were both alone. She repeated this claim at the resumed hearing. The visa applicant told the Tribunal at the resumed hearing that he attended the first meeting with his son and that the review applicant brought her nieces.
This information was put to the review applicant for comment or response as adverse information under s.359A of the Act. She was told that the information was relevant to the review because it suggested that the claim of the parties’ first meeting was fabricated. She was told that the Tribunal, were it to rely on this information, may cause the Tribunal to call into question whether the parties were in a relationship, or that this relationship began on 20 September 2013. She was told that it might cause the Tribunal to call into question her credibility on a key point in the development of the parties’ relationship. She was told that the Tribunal may form the view that the parties do not have a commitment to a shared life as a married couple to the exclusion of all others or that the relationship between the parties is genuine.
A due date of 18 December 2019 was set, which was varied by the Tribunal to be 2 January 2020 at the request of the review applicant via email. A further request for extension was put to the Tribunal by the review applicant via email but this request was refused. As at the date of this decision, no response has been received from the review applicant to the s.359A letter.
The Tribunal has considered the evidence of the parties at the hearings. It considers that it would be reasonable for the parties to have remembered details of their first meeting. In the absence of any explanation by the review applicant for the inconsistencies between her evidence and the evidence of the visa applicant, it is not satisfied that the parties met at that time or in the manner claimed by them, including that they met in a spontaneous way.
The parties claim to have married in October 2013, although there was some confusion over the specific date of the wedding. The review applicant variously stated at the hearings that it was on 19 October 2013 or 21 October 2013. The visa applicant told the Tribunal at the resumed hearing that it was one month and 20 days after they met (the Tribunal identified difficulties with the visa applicant using the Gregorian Calendar and so asked him to use this format). The parties’ marriage certificate states that they were married on 19 October 2013. The parties stated that they committed to a shared life together to the exclusion of all others on 21 October 2013.
The parties therefore claim to have been in a relationship for a period of around two-and-a-half years at the time of application. At the time of this decision, the parties claim to have been in this relationship for almost seven years.
During this time, the parties claim to have lived together for two periods – once in 2013 after their wedding until the review applicant returned to Australia for a period of about three weeks, and in 2016 for a period of around one-and-a-half months.
The Tribunal now turns to the degree of companionship and emotional support that the parties draw from each other.
Concern was raised by the Tribunal at the resumed hearing about the short duration of the parties’ claimed relationship before marriage – the parties were married only one month after claiming to have first met. The review applicant replied that she was “taking into account” the time she had overseas. She also said that this is common in Ethiopia. The visa applicant told the Tribunal at the resumed hearing that the review applicant only had two months in Ethiopia.
At the resumed hearing, the Tribunal read out to the review applicant the following timeline of events:
·In November 2012, her brother-in-law dies;
·In June 2013, her sister dies (and her nieces are orphaned);
·In October 2013, the parties marry after knowing each other for one month; and
·In October 2014, custody is given to the visa applicant.
After having read out this timeline of events, it was put to the review applicant that the marriage was effected for the purposes of allowing custody of her nieces to pass to the visa applicant, and for her nieces to then be brought out to Australia. The review applicant said she was confused by the question. The Tribunal instead asked her to say what sets the parties’ marriage apart from one which allowed the opportunity for the visa applicant to migrate to Australia with the review applicant’s nieces and the visa applicant’s children. The review applicant replied that she married the visa applicant in order to live together with him and also to bring her nieces to Australia so that they can have a better life here. When asked a similar question, the visa applicant told the Tribunal that his main reason to come to Australia is to live with the review applicant. He said that, in these circumstances, his children might as well come to live.

While the Tribunal notes that a migration outcome can be among the reasons for entering into a relationship, it has concerns that the relationship was entered into for the sole purpose of achieving a favourable migration outcome for the review applicant’s nieces. The Tribunal has had regard to the responses of the parties, but considers that they have not adequately addressed the Tribunal’s concerns, especially in relation to the short development of their relationship pre-marriage, and these concerns remain.
The review applicant was asked at the hearings why she had not travelled to Ethiopia since May 2016, or in over three years’ time at the time of the hearings. At the initial hearing, she stated that it was because of “problems” in Ethiopia. The review applicant gave evidence at that hearing that she had planned to travel to Ethiopia in July or August 2018 with her son, but was not able to take the trip. In support of this claim, she provided e-ticket itineraries in respect of a journey to Ethiopia; however, the dates of travel were 25 November 2018 for departure and 30 January 2019 for return. At the resumed hearing, the review applicant stated the reason as being that she has been (and is still) involved in a court case with her ex-de facto partner over custody of her son. According to her, he has not approved her taking her son to travel to Ethiopia, although he has let her take him to Dubai which she did in 2019. When asked why she did not travel to Ethiopia by herself, the review applicant told the Tribunal at the resumed hearing that her mother would want to see her son, and she would have to stay for a couple of months. She said that she would not want to disappoint her mother. The visa applicant told the Tribunal at the resumed hearing that he understood the reason for her not travelling to be that the review applicant’s income was not good and that she was looking after her son.
This information, being the parties’ inconsistent answers as well as movement records which showed the review applicant making two trips overseas to Dubai within that period (one with her son and one without), was put to the review applicant for comment or response as adverse information under s.359A of the Act. She was told that the information was relevant to the review because it suggested that her reason for not travelling to visit the visa applicants in over three years, while in that time being able to travel out of Australia, was not plausible. She was told that the Tribunal, were it to rely on this information, may form the view that the parties did not have a commitment to a shared life as a married couple to the exclusion of all others.
As above, a due date of 18 December 2019 was set, which was varied by the Tribunal to be 2 January 2020 at the request of the review applicant via email. A further request for extension was put to the Tribunal by the review applicant via email but this request was refused. As at the date of this decision, no response has been received from the review applicant to the s.359A letter.
The Tribunal has considered the information put by the parties. It acknowledges that there may be more-than-one reason for the review applicant to not travel over to see the visa applicant in Ethiopia. However, the Tribunal still considers the information to be adverse to the review. It accepts that both parties mentioned the review applicant’s son as being a reason for not visiting. However, the review applicant has clearly availed herself of the opportunity to leave her son at home while she has travelled overseas – she did so in 2016 when she travelled to Ethiopia and the other time in 2018 when she went to Dubai. The Tribunal acknowledges that the review applicant said that she would need to take her son if she were to travel to Ethiopia but it points to the fact that she had previously travelled to Ethiopia without him once before in 2016. The Tribunal considers that the reasons given by the parties are inconsistent with each other. The visa applicant believed the reason for the review applicant not visiting him in Ethiopia since 2016 was due to money, whereas the review applicant said that it was due to custody issues and because of the security situation. It has not received information from the review applicant to explain this inconsistency. In these circumstances, it considers the reasons given by the parties to be implausible.
The review applicant provided a number of phone cards at the resumed hearing which she claims were used to contact the visa applicant by telephone. The Tribunal accepts that these phone cards were used by her. Apart from her claims, there is no evidence to show that these cards were used to communicate with the visa applicant, let alone in what year they were used. The parties also submitted some communications records at the Department stage which show calls made between the parties. These records pertain to the period before that decision, and show that the review applicant made some phone calls to visa applicant’s number as nominated in his visa application form – typically around once-a-fortnight to once-a-month, although the calls are sometimes more frequent. His number is among a number of other Ethiopian numbers called by the review applicant. The review applicant provided no communications records after September 2017, although she did provide a letter from Ethiotelecom dated 15 September 2017 addressed to the visa applicant that purports to attach a two-page document detailing calls made to the visa applicant’s number within the previous six months. However, no attachment was received by the Tribunal.
At the resumed hearing, the review applicant told the Tribunal that the parties talk about life and about their families. The visa applicant said that they talk about what will happen when they migrate to Australia. The visa applicant said that they talk about once-a-fortnight or once-a-month. They both told the Tribunal that the internet is bad, a claim that the review applicant also made in a letter dated 20 January 2017. The review applicant told the Tribunal at the hearings that the visa applicant works as a field worker in the Ministry of Agriculture in a small town outside of Hawassa. She said that his children live in Hawassa with a servant. She said that has not met the visa applicant’s ex-spouse, nor does she know her name.
The review applicant said at the initial hearing that the secondary applicant named Yeabsira finished a PhD programme in health education. It was put to the review applicant that Yeabsira transitioned to information science according to documents submitted by the parties. At the resumed hearing, the review applicant said that Yeabsira graduated as a medical doctor from Black Lion Hospital. The review applicant was asked whether this was correct and she told the Tribunal that she thought Yeabsira had changed her field or profession and that she forgot. The review applicant told the Tribunal that the secondary applicant named Melat was enrolled in an engineering course through the University of Ethiopia, and that the secondary applicant named Nardos was in year 11 at an Ethiopian public school. The visa applicant spoke in similar terms in relation to these two children. When asked about the secondary applicant named Fitsum, the review applicant said that he was in year 7. When it was put to the review applicant that Fitsum was 17 years old according to documents submitted by the parties, she indicated that she did not believe the Tribunal. She said that time goes so fast. She then said that she thought he was in year 8.
The Tribunal has considered the overall evidence in relation to the degree of companionship and emotional support the parties draw from the relationship. It has given weight to evidence that the parties have communicated with each other, although it notes that these records are for a limited period and there are no records from after the date of the delegate’s decision (although there are phone cards which the review applicant claims were used to communicate with the visa applicant). It gives weight to evidence showing the parties possess a knowledge of each other; however, this weight is diminished in light of some significant gaps in the review applicant’s knowledge of the visa applicant’s family that it considers she ought to have known – such as what the visa applicant’s daughter studied and the age of his son. It gives the most weight of an adverse nature to evidence that the review applicant did not travel to visit the visa applicant or the secondary applicants from the time she was in Ethiopia in 2016 to the time of the hearings, despite having twice ventured overseas in that time. The review applicant indicated to the Tribunal in an email of 30 December 2019 that she intended to travel over to see the visa applicant in January 2020, but no other evidence was provided to substantiate this claim as at the date of this decision and the Tribunal is not satisfied that she has done so. On balance, the Tribunal is not satisfied that the evidence indicates the parties draw companionship and emotional support from each other.
In relation to whether the parties view their relationship as a long-term one, the Tribunal asked the review applicant at the initial hearing where the parties and the secondary applicants planned on living given that she currently lives in a two-bedroom public housing flat. She said that she will apply for a bigger house when the visa applicants arrive. The Tribunal asked her how she would be able to afford that. The review applicant replied that the family are all well-educated. The review applicant was asked by the Tribunal at the resumed hearing if she had begun looking for schools. She said that she had, because she lives in Richmond and there are lots of schools around, but she had not started the process because she was not sure they will migrate. When asked by the Tribunal at the resumed hearing whether the parties had discussed what the visa applicant might do for work in Australia, she replied that they had not, but he will do any job. At the initial hearing, she said that the visa applicant will get training in English before seeking employment. At the initial hearing, she said that the visa applicant completed the equivalent of year 12, and while he can speak English, he does so with an accent. At the initial hearing, she said that she has found several jobs for herself, but is limited by her son, who is an asthmatic and is home quite a lot.
The Tribunal notes evidence indicating that the parties view their relationship as a long-term one, such as evidence that the visa applicant is caring for and providing for the review applicant’s nieces in Ethiopia. It gives this evidence weight. It also acknowledges what has been submitted by the review applicant in relation to the parties’ future plans and gives this evidence weight as well. However, the Tribunal diminishes the weight given to the latter evidence as it appears to it that the review applicant has made very few preparations for the arrival of the visa applicant and the four secondary applicants despite the probable expense of having to provide for the visa applicants.
The Tribunal has considered the evidence in relation to the nature of the parties’ commitment to each other. It is not satisfied that the evidence points to the parties having a commitment to a shared life to the exclusion of all others, nor does it indicate that the parties’ relationship is genuine and continuing.
CONCLUSION
The Tribunal is certainly not unsympathetic to the plight of all parties involved. The review applicant was presented with a situation where she needed to ensure the well-being of her nieces through an extremely difficult period. By all accounts, the visa applicant has proven to be a conscientious adopted father to her nieces, and they appear to have been enthusiastically welcomed into his existing family.
However, the Tribunal is mindful that its inquiry is into whether the visa applicant was the spouse of the review applicant at the time of visa application and continues to be so today. To the Tribunal’s mind, there is little evidence submitted by the parties that points to this.
On the basis of the above the Tribunal is not 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. While the Tribunal accepts that the parties were validly married, it is not satisfied that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others under s.5F(2)(b) or that the parties’ relationship is genuine and continuing under s.5F(2)(c) at the time of application and at the time of this decision.
Therefore, the visa applicant does not meet cl.309.211 and cl.309.221.
The secondary applicants do not meet the secondary criteria in cl.309.311 and cl.309.321 of Schedule 2.
For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
David Crawshay
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15ASpouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day‑to‑day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long‑term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

[2020] AATA 1117

1 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice