ABEDALA (Migration)

[2019] AATA 4687

ABEDALA (Migration) [2019] AATA 4687 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms FATUMA MOHAMED RASHAD ABEDALA

VISA APPLICANT:  Mr MOHAMED JEMAL SEYD

CASE NUMBER:  1722522

DIBP REFERENCE(S):  BCC2015/1895999

MEMBER:Stephen Witts

DATE:3 October 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 of the Regulations

- cl.309.221 of Schedule 2 of the Regulations

-  r.2.03A

Statement made on 03 October 2019 at 1:19pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspect – minimal evidence – household arrangements – social aspects – commitment to relationship – eight visits to Ethiopia – issues of concern – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 2.03A; Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

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 17 July 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 June 2015 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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 the delegate was not satisfied that the first named visa applicant was a spouse of the sponsor. As the first named visa applicant did not satisfy the relevant primary criteria, the delegate found that the second named visa applicant could not meet the relevant secondary criteria.

4. The review applicant appeared before the Tribunal by telephone on 3 October 2019 to give evidence and present arguments.

5. The Tribunal also heard evidence from the visa applicant offshore by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the first named visa applicant is a spouse of the review applicant within the meaning of s.5F(2) at the time of application and the time of decision.

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

   Whether the parties are in a spouse or de facto relationship

8. 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

9. ‘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 wife’s death certificate in that it was registered 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?

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

11. A marriage certificate is provided in the delegate’s file between the applicants which was held in Ethiopia and stamped by the Australian High Commission Immigration Section and received in Nairobi Kenya (delegates file folio 22). The Tribunal is concerned that it cannot make out the date on this certificate but it was endorsed in the city administration office in the township of Bedessa in Ethiopia. It is noted by the Tribunal that the delegate has contended that the date given by the review applicant as the date of marriage, that is 12 November 2014, could not have been the date of the marriage as the review applicant was onshore at that time.

12. Prior to the hearing the review applicant provided material to the tribunal which indicated that the applicants were actually married on 12 November 2013. The review applicant explained that she had made a mistake in her statutory declaration when she stated that the applicants were married on 12 November 2014. The applicants provided evidence that the Tribunal found credible that they were actually married in 2013 not 2014 on that day. The tribunal also notes that the review applicant’s movement records indicate that she was in Ethiopia at that time as her records indicate that she left Australia on 20 October 2013 and returned back to Australia from Ethiopia on 30 November 2013.

13. The tribunal is concerned that the applicants made such an error but on the evidence subsequently presented finds that the applicants were validly married.

14. Therefore on the evidence available, the Tribunal finds 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 spouse relationship met?

15. The Tribunal has considered all the evidence provided in the delegate’s file and in the AAT file and the evidence taken at hearing.

16. In particular the tribunal has considered the following from the delegate’s file: a statement by the visa applicant regarding the death of his previous wife and his assertion about mistaken identity, some phone call records from 2013 until 2016, a death certificate regarding the visa applicant’s previous wife, a divorce certificate pertaining to the review applicant, some small money remittances from 2014 and 2015, 2 statutory declarations in form 888 purporting to be from two friends of the sponsor, and a statement by the review applicant stating that the relationship is genuine, and other material provided.

17. The tribunal has also considered any material provided in the AAT file in particular information provided on the day of the hearing which includes amended marriage certificate information with a different date, other information pertaining to the marriage, and information pertaining to the identity of the woman named Kadija, as to whether she is or was the wife or the brother’s wife of the visa applicant.

18. According to the delegate’s decision record dated 17 July 2017 provided to the Tribunal by the applicants, the visa applicant Mr Mohamed Jemal Seyd lodged a valid application for a Class UF Partner (Provisional) (Class UF) (Subclass 309) visa and a BC Partner (Migrant) visa on 6 July 2015 on the grounds of being in a spousal relationship with an Australian citizen sponsor, Fatuma Mohamed Rasad Abedala who lodged a sponsorship in support of the application.

19. According to the delegate in her relationship statement the review applicant has stated that she has known the visa applicant since 2013 but that they did not start a relationship immediately. According to the delegate they communicated as friends and eventually a relationship started and they were then married on 12 November 2014. This date as above has been now amended to 12 November 2013.

20. According to the delegate the visa applicant has declared a previous relationship with Alfiya Sani Ibrahim from 1 January 1977 until 1 January 1998. This person has since been declared as deceased. A death certificate with a date of death of 15 January 2011 has been provided. The number of children declared in this relationship is seven. These seven children had been listed as non-migrating dependents. The review applicant has declared a previous relationship with Ibrahim Dine Hassen which ended in 2003 with his death. Two children have been declared from this relationship. The review applicant however has provided a divorce certificate dated 17 April 1996.

21. According to the delegate the applicants have not provided any evidence in regard to financial aspects of the relationship except for some money transfers sent to the visa applicant from 2013 to 2016. The delegate also asserted that there was no evidence in regard to any shared household arrangements, very little evidence of any social aspects to the relationship, in particular no evidence has been provided in regard to the applicants’ wedding ceremony or any photos of themselves in various social settings. The delegate also found limited evidence of any commitment in the relationship. In particular the delegate was concerned about the lack of any communication records except for a specified period of time of the limited nature.

22. According to the delegate it was also concerned by the visa applicant’s previous wife’s death certificate in that it was registered by the visa applicant who was listed as a brother to the deceased not a husband. The Department sent a natural justice letter requesting the visa applicant’s response to these matters specifically as to whether he was this person’s sibling and not an ex-husband and that he may have actually been married to another person listed as Mrs Kedija Ahmed. In response to this the visa applicant claimed there was a mistake in the verification process as he also has a sibling called Alfiya. He also claimed that Mrs Khadija Ahmed is the wife of his brother. He stated that these mistakes were made by an officer who provided the information. The delegate was not satisfied as to the veracity of the visa applicant’s claim as he could not provide a credible explanation as to why he is listed as a sibling who processed the death certificate of his claimed deceased wife.

23. According to the delegate he was concerned that the visa applicant may still be residing with another woman, his wife, named Kedija.

24. As stated above, according to the delegate he was also concerned that during the time of the claimed wedding, that is 12 November 2014, the review applicant was in fact onshore in Australia. The delegate was concerned also because there was no photographic evidence of any wedding ceremony.

25. The Tribunal has also considered in particular a statutory declaration from the review applicant (delegates file folio 39) stating that she married the visa applicant on 12 November 2014.

26. At the hearing the Tribunal reviewed the review applicant’s movement records with her noting the Tribunal did not find these movement records adverse. The Tribunal discussed the review applicant’s flights and stays in Ethiopia since 2013 and notes that the review applicant was currently with her husband in Ethiopia after having left Australia on 2 September 2019. The review applicant also provided evidence that she left Australia on 19 June 2019 to visit her brother in Kuala Lumpur in Malaysia and returned to Australia on 27 June 2019. She also provided evidence that she was in Ethiopia from 3 September 2018 until 20 September 2018 with her husband. She was also in Ethiopia with her husband from 20 November 2017 until 7 December 2017. Prior to that she was with her husband in Ethiopia from 9 November 2016 until 4 December 2016, and before that she was with her husband in Ethiopia from 11 March 2015 until 11 April 2015. Prior to that she was in Ethiopia with her husband from 6 July 2014 until 14 August 2014. Prior to that she was in Ethiopia from 20 October 2013 until 30 November 2013 during which time she married her husband on 12 November 2013. As noted above by the Tribunal the applicant gave an incorrect marriage date of 12 November 2014 where she couldn’t have got married in Ethiopia because she was in Australia at that time.

    ·Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

27. At hearing the review applicant provided evidence she has provided money remittances to her husband since 2015 and particularly in 2016 and also from 2016 but that she had not provided a significant amount of money as her husband was financially stable and is receiving an income from his shop. She explained that she wanted a husband to be self-sufficient so she had only sent him small amounts of money as he could support himself. She provided evidence that he owns his own house and was economically self-sufficient in Ethiopia. The review applicant also provided evidence that whilst living with her husband in his house during the periods of time referred to above she shares day-to-day household expenses, goes shopping regularly with her husband and provides most of the food and other goods whilst she is in Ethiopia with his family.

28. At hearing the visa applicant provided similar evidence that the review applicant lives with him during her many stays to Ethiopia.

29. The Tribunal has considered the evidence provided by the applicants and finds that evidence has been provided regarding the financial aspects of the relationship, but that this does not include any joint ownership of assets, any joint liabilities, any pooling of financial resources other than referred to above, or any legal obligations owed to the other party.

30. The tribunal is concerned that the applicants have not been able to provide other evidence of financial aspects but nevertheless accepts that the applicants have spent a considerable amount of time together in Ethiopia during the review applicant’s many trips there and that during that time they do pool financial resources and share day-to-day household expenses and therefore the Tribunal finds that this lends some weight to there being some financial aspects to the relationship.

    ·Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

31. At hearing the review applicant explained in detail the aspects of the visa applicants living arrangements in Ethiopia with the visa applicant’s seven children some of whom live with him and some of whom live with his brother in another house during some periods. The review applicant provided evidence that the Tribunal found credible that she helps him look after his children while she is there, that she shops for them, and provides day-to-day support and care for these children. She was able to provide evidence that she does most of the shopping for the family and a significant amount of the house work on behalf of her husband and the children.

32. At hearing the visa applicant was able to provide similar evidence that they have lived together for significant periods of time and that the review applicant provides some support and assistance and takes responsibility for the care and support of children, that they have shared living arrangements and shared housework.

33. On that basis, the Tribunal finds that the applicants have provided evidence of a shared household for a significant period of time over the last few years and that this lends weight in the Tribunal’s consideration of the nature of the relationship.

    ·Social aspects of the relationship – including whether 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 persons plan and undertake joint social activities.

34. The review applicant provided evidence that the family, friends and other people that she knows in Australia and also the family, friends and other people in Australia do recognise that she is married to the visa applicant and that that is the opinion of friends and acquaintances about the nature of their relationship. She was also able to provide evidence in regard to the planning and undertaking of joint social activities.

35. The visa applicant provided similar evidence that demonstrated that there are social aspects to this relationship.

36. On the basis of the above the Tribunal finds that the applicants have demonstrated that there are social aspects to this relationship.

    ·Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

37. The applicants provided evidence at hearing about the nature of the commitment that they had to each other which the tribunal under all the circumstances finds credible. In particular, the review applicant has now spent approximately six months since 2013 in eight visits to Ethiopia and the Tribunal finds that this is crucial in making a determination that there are social aspects in this relationship, that the applicants have a commitment to each other, and that there is a household that they have shared together.

    ·Any other circumstances of the relationship.

    ISSUES OF CONCERN

38. The tribunal is concerned that the applicants have not demonstrated a significant amount of financial aspects of their relationship but is also mindful that the applicants do not have considerable financial resources in any case, and the visa applicant in particular in Ethiopia is not able to accumulate sufficient capital to demonstrate effectively a financial aspect of the relationship.

39. The tribunal is also concerned regarding the confusion about the date of the marriage however the tribunal finds that after consideration of the evidence recently provided it is credible that the applicants were married in 2013 and that mistakes were made in terms of the presentation of that date earlier in the relationship which was a consideration by the delegate.

40. The tribunal is also concerned about the evidence in the delegate’s file regarding the identity of the visa applicant’s wife and the issues with the death certificate. It is noted by the tribunal that the applicants have provided further evidence from the visa applicant’s home town about the identity of the other woman, Kadija, who it is claimed by the visa applicant is his brother’s wife. The tribunal has considered this evidence provided by the visa applicant and does find it credible under the circumstances.

41. The tribunal is also concerned by the applicants’ evidence in regard to the visa applicants’ dependents. These dependents, aged 9, 11, 13, 15, 16, 17, and 20 live both with the visa applicant and the visa applicant’s brother. These dependents are not listed as part of this application. When asked to clarify this by the tribunal the visa applicant stated that they would live with his brother and the review applicant stated that she did not want them as parties to this application at this time. The tribunal was concerned by the lack of clarity provided by the applicants in regard to this matter in that it may indicate a further plan by the review applicant which she has not been forthcoming about.

1. Despite those concerns, the tribunal is mindful that the applicants have spent a lot of time together over the last few years particularly via the many trips and prolonged stays that the review applicant has made in Ethiopia and the evidence the applicants have provided in terms of the social aspects of the relationship, the nature of the household that they have shared together, and the commitment that they seem to have to each other.

2. The Tribunal has considered all the evidence presented and finds that the applicants do have a mutual commitment to a shared life to the exclusion of others; and a genuine and continuing relationship; and they do intend to live together 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 does meet cl.309.211 or cl.309.221.

5. For the reasons above, the visa applicant does satisfy the criteria for the grant of the visa.

   DECISION

6. The Tribunal remits the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa for reconsideration, with a direction that the visa applicant meets the following criteria for a subclass 309 (Partner (Provisiona)) visa:

   - Cl.309.211 of Schedule 2 to the regulations

   - Cl.309.221 of Schedule 2 to the regulations

   -  R.2.03A

   Stephen Witts
   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).