Amoah (Migration)

[2024] AATA 322

Amoah (Migration) [2024] AATA 322 (20 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sylvester Atta Amoah

REPRESENTATIVE:  Mr Gareth Lewis, Legal Practitioner

CASE NUMBER:  1901687

HOME AFFAIRS REFERENCE(S):          BCC2015/318890 BCC2019/718205

MEMBER:Jennifer Cripps Watts

DATE:20 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl 100.221 of Schedule 2 to the Regulations

Statement made on 20 February 2024 at 1:18pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – paternity of youngest child – length of relationship – spontaneous and cogent evidence and supporting statements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3)(c), Schedule 2, cl 100.221

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 10 January 2019 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 January 2015 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 100.221 because the delegate was not satisfied the applicant and sponsor (the parties) continued to be in a genuine married relationship.

5. The applicant appeared before the Tribunal on 20 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and her sister, Eunice.  The Tribunal hearing was conducted with the assistance of an interpreter in the Akan and English languages.  Occasionally it was necessary for questions and answers to be clarified or repeated, which is not unusual in a hearing in the Migration Division.  The Tribunal is satisfied that all who participated in the hearing were heard and understood.

6. The applicant’s representative, Mr Lewis, attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether, at the time of this decision, the parties continue to be in a genuine married relationship since the grant of the applicant’s subclass 309 visa on 17 October 2017.

   Whether the parties are in a spouse or de facto relationship

9. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen.

10. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term. 

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 parties’ household and their commitment to each other as set out in reg 1.15A(3)(a)-(d) of the Regulations.

    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.  On the evidence, the Tribunal is satisfied the parties were and, at the time of this decision, remain 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?

13. The applicant provided recent and updated documentary evidence in support of the application on review, including evidence of the parties’ shared household, joint bank statements and additional Form 888 statutory declarations from friends and family who, consistently among all of them, based on their first hand observations, hold the opinion that the parties are in a genuine married relationship.

14. The Tribunal has had the benefit of speaking with the parties in person, separately and together, and also with the sponsor’s sister.  This was done in a fairly informal manner at the hearing which was considered to be appropriate in the parties’ circumstances.  Both the applicant and sponsor gave spontaneous and cogent oral evidence at the Tribunal hearing as did the sponsor’s sister, Eunice.  They are all considered to be very credible.  A number of supportive friends and family members attended the hearing.  One had travelled a significant distance from Bega to give evidence at the hearing and another had taken a day off his work as a taxi driver.  

    Background

15. The applicant’s related subclass 309 visa was granted on 17 October 2017 on the basis of his marriage to the sponsor.  He still holds the visa, the same sponsorship is still in place, and the parties are still married to each other.  They claim that the relationship is genuine and continuing and the Tribunal, having carefully considered their evidence, giving weight in particular to their oral evidence at the hearing, is satisfied that they are a typical married couple with children.   

    Financial aspects of the relationship:  reg 1.15A(3)(a)

16. The Tribunal has had regard to the parties having any joint ownership of assets; 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.

17. With reference to joint account bank statements and the oral evidence given at the Tribunal hearing, at which entries in the bank statements were discussed, the Tribunal is satisfied that the parties pool their financial resources and share day-to-day household expenses.  They each have their own individual bank account where their salaries are paid.  Then each of them transfers money to the joint account to pay for rent, groceries and petrol.  There are regular debits or purchases from Kmart, Pizza Hut, Woolworths, Aldi, Bass Hill Fresh Fruit, and the Bass Hill Chemist.

18. The parties have a residential lease in joint names for the property they reside in, Chester Hill Road in Bass Hill.  They own a Toyota Kluger car.  The beneficiaries of the applicant’s superannuation are his wife and their three children.

19. The Tribunal is satisfied that the financial aspects of the relationship are what may be expected of a couple with three children.

    Nature of the household:  reg 1.15A(3)(b)

20. The Tribunal has considered any joint responsibility of the parties for care and support of children; their living arrangements; and any sharing of housework.

21. The parties were each invited to give oral evidence about how they arrange their time, relating to the care of the three children, who are in years 9, 7 and 1 at the time of this decision.  The sponsor is the biological mother of the three children.  The applicant is their stepfather.  Since the applicant arrived onshore holding the subclass 309 visa, he, the sponsor, the sponsor’s mother, and the three children, have all lived together at the same home they rent, at Chester Hill Road in Bass Hill.  It has four bedrooms.  The parties themselves have one of the bedrooms, each of their daughters has a room of their own and the youngest child, a boy who is nearly six years of age, shares a room with his grandmother.

22. In response to questions put by the Tribunal, the applicant said he works in a four days on and four days off rotation, sometimes doing overtime.  He catches the train to work and either walks 20 minutes between their home and the station or is driven by his wife.  The applicant has a Learner’s Permit and his wife is teaching him how to drive.  The applicant said that he feels the responsibility to make sure there is food in the home.  After work, when he gets off the train, he goes to the supermarket and buys food for the family.  The sponsor also does the food shopping sometimes and occasionally they do it together.  The sponsor works three days a week and when neither of the parties is home to collect their youngest child from school, his maternal grandmother (who lives with them) picks him up.  

23. The family has a basketball hoop and a trampoline in the backyard.  The applicant is teaching their youngest child to ride a bike.  This child has an NDIS plan involving monthly visits to a speech therapist.  The applicant was able to give spontaneous oral evidence at the hearing of the details of the child’s diagnosis, his progress at school and what his funded supports are.

24. Documentary evidence has been provided showing that bills for gas, Optus and electricity are sent to the parties at the Chester Hill Road address.  A statement of the sponsor’s Australian Tax Office account includes the applicant as her ‘spouse’.  The sponsor’s Centrelink account form include the applicant as the emergency contact for the children.  The applicant himself provided evidence of his Centrelink registration dated 17 April 2023 as proof of his address; that is, at the home in Chester Hill Road at Bass Hill.

25. The Tribunal has considered the documentary and oral evidence relating to the parties’ household and is satisfied that the family, including the three children and the sponsor’s mother, have lived together at the same house for over eight years; and that the parties’ living arrangements and joint responsibility for care of the children.

    Social aspects of the relationship:  reg 1.15A(3)(c)

26. The Tribunal has considered the manner in which the parties represent themselves to other people; 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.

27. The subclass 309/100 partner visa application was made on Some of the same friends and family who provided statutory declarations in support of the parties’ related subclass 309 partner visa application, have done so from the time of application up to the time of this decision.  Their opinions are based on first-hand observations of the parties together and have remained consistent and unwavering over a very long period of time.  For this reason, the Tribunal give very significant weight to their evidence.

28. At the time of this decision, the Tribunal is satisfied that the parties represent themselves to family and friends and in the wider community as a genuinely married couple.

    Nature of the parties’ commitment to each other:  reg 1.15A(3)(d)

29. The Tribunal has given significant weight to the duration of the parties’ relationship.  They were married in Ghana in May 2014 and applied for the offshore partner visa in January 2015.  They have now been married for nearly 10 years.  With reference to the above matters relating to the way their arrange their finances, share their household and represent themselves as a married couple to friends, family, the community and government agencies, the Tribunal is satisfied that the parties provide each other with companionship and emotional support, that the relationship is long term, and that the parties see the relationship as continuing to be long term.

    Other circumstances

30. It has not been overlooked that the parties had some personal hurdles to overcome not long after the applicant arrived onshore relating to the paternity of their youngest son, who is his stepchild.  The Tribunal is satisfied that, with support and guidance from family members and their community, they worked through their problems (over seven years ago) and that the remain committed to the marriage.

31. The parties have a valid marriage.  Having considered the above matters, the Tribunal is satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others; that their relationship is genuine and continuing; and that they live together or not separately and apart on a permanent basis. 

32. Given these findings the Tribunal is satisfied that the requirements of s 5F(2) of the Act are met at the time of this decision.  The applicant is the holder of a subclass 309 (Partner (Provisional)) visa at the time of this decision. 

33. Therefore the applicant meets cl 100.221 of Schedule 2 to the Regulations.

34. 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 100 visa.

    DECISION

35. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

    ·cl 100.221 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    Senior Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).