Belachew (Migration)

[2019] AATA 5874

Belachew (Migration) [2019] AATA 5874 (14 August 2019)

Corrigendum

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dagmawi Belachew

VISA APPLICANTS:  Mrs Blen Demmelash Alemu
Ms Bezawit Dagmawi Belachew
Master Biruk Dagmawi Belachew

CASE NUMBER:  1726278

DIBP REFERENCE(S):  BCC2016/521085

MEMBER:Stephen Witts

DATE OF DECISION:  14 August 2019

DATE CORRIGENDUM

SIGNED:1 November 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The first page and page 6 of the decision record states that: The Tribunal remits the applications for Partner (Provisional)(Class UF) visas for reconsideration with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

cl.309.211 of Schedule 2 to the Regulations

cl.309.221 of Schedule 2 to the Regulations

At page 5 of 7 of the Decision Record, it states at point 37 that: In regard to the secondary applicants, the Tribunal finds that they are members of a family unit of a person who satisfied the primary criteria.

However, at page 6 of the Decision Record, it states The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas. This should be The Tribunal remits the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas

Stephen Witts
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dagmawi Belachew

VISA APPLICANTS:  Mrs Blen Demmelash Alemu
Ms Bezawit Dagmawi Belachew
Master Biruk Dagmawi Belachew

CASE NUMBER:  1726278

DIBP REFERENCE(S):  BCC2016/521085

MEMBER:Stephen Witts

DATE:14 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 14 August 2019 at 11:59am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine relationship – frequent visits to family in Ethiopia – financial support to family – joint responsibility for adopted children – evidence of joint social activities – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

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 6 September 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 4 February 2016 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because 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 on 14 August 2019 to give evidence and present arguments.

5. The Tribunal also received oral evidence from the review applicant’s mother Meaza Asbha, and the review applicant’s brother Anteneh Belachew.

6. The review applicant was represented in relation to the review by his registered migration agent, Mr Tedla Wanaw.

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 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

9. 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.

10. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

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

12. According to evidence provided by the applicants they were married lawfully on 16 January 2015. It is noted by the Tribunal that the delegate does not dispute this. A marriage certificate has been provided (provided in delegates file) that attests to this.

13. 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).

    Are the other requirements for a spouse relationship met?

14. The Tribunal has considered all the evidence provided in the delegates file and in the AAT file. This includes material attesting to phone contact, witness statements from the review applicant’s parents and other statements from friends, it also includes some adoption material from Ethiopia, records of money transfers over the last few years as well as various photos (in particular AAT file folio 36- 40) and some bank deposit material. It also includes a statement made by the review applicant (AAT file folio 41).

15. According to the delegate’s decision record dated 6 September 2017, provided to the Tribunal by the applicants, the applicants first met on 4 December 2012 and made a commitment to each other on 7 July 2014 and were then married on 16 January 2015 in Ethiopia. It is noted that the secondary applicants are listed as dependent adopted children of the applicants. It is noted by the Tribunal that material has been provided attesting to the nature of the adoption.

16. At the hearing the review applicant explained that over the last 18 months he has returned to Ethiopia to live with his wife and adopted children on four separate occasions for several weeks at a time. The Tribunal notes that the review applicant’s movement records which the Tribunal found was not adverse to the applicant confirm that this is the case. The review applicant explained that he has spent several months living with his wife and adopted children in her rented house in Addis Ababa in Ethiopia and explained the details of their living arrangements during this time.

17. The review applicant explained that he was currently working as a fitness instructor and in other duties at the RACV club and also working casually at the airport. He explained that his wife is currently working as a nurse and was living with and looking after their two adopted children which they adopted on 23 July 2015 after having been married on 16 January 2015. The review applicant explained the nature of their first meeting in 2012 and the circumstances of their relationship since that point.

18. The review applicant’s brother and mother, residing here in Australia, also gave evidence as to the nature of the relationship between the review and visa applicant.

19. The Tribunal also spoke to the visa applicant who provided evidence in regard to the nature of her relationship with the review applicant.

20. The review applicant’s agent also provided evidence demonstrating to the nature of the relationship between the review applicant and the visa applicant.

    ·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.

21. The Tribunal had a discussion with the review applicant regarding the financial aspects of the relationship. The review applicant confirmed and was able to demonstrate that he has sent over approximately AU$20,000 to his wife and adopted children over the last three years or so to assist them to maintain their life over there. The review applicant also provided evidence of a joint bank account both in his name and in his wife’s name in a savings bank account in Ethiopia with a current balance of AU$27,000.

22. The applicant also explained that he owns his home in Truginina in Melbourne which has a mortgage which is in his name. The applicant explained that if his wife and adopted children joined him here in Australia he would either change that homeownership to a joint ownership or sell the home and buy another home which would be suitable for living in with the two children.

23. The review applicant confirmed that he does not have any other liabilities or legal obligations owed to the visa applicant.

24. The Tribunal has considered all this evidence and although it is mindful that the applicants do not have any joint property it is also the case that the review applicant has provided, taking into consideration his limited financial means, a reasonable amount of money to his wife offshore which is in a joint bank account. On that basis the Tribunal finds that the applicants have demonstrated that there are genuine financial aspects to their relationship which would indicate that they are in a genuine spousal relationship.

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

25. In regard to the nature of the household the applicants provided evidence in regard to the joint responsibility for care and support of their adopted children. In particular, the review applicant provided evidence as to the support of a financial nature, and other means, by which the review applicant provides care and support of the adopted children in Ethiopia and the level of responsibility he takes for their welfare. The applicants also provided evidence that explained in detail the living arrangements that the applicants share when the applicant is in Ethiopia on his regular trips back there. Evidence was provided by the applicants in terms of the domestic relationship and activities, including their household activities together and their recreational activities and other planned social activities of this nature.

26. The evidence given by the review applicant and the visa applicant outlining their living arrangements were consistent and credible.

27. After consideration of this evidence the Tribunal finds that during the several months that the applicants have lived together in the visa applicant’s house with the adopted children over five successive visits demonstrates that they can provide evidence of a shared household.

28. On that basis, the Tribunal finds that the applicants have provided evidence as to the nature of the household that they have shared and the joint responsibility for the care and support of children which demonstrate that the applicants are in a genuine spousal 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.

29. The applicants provided evidence via various statements and also oral evidence by the review applicant’s brother and mother which demonstrates that they do represent themselves to other people as being married to each other, and that that is the opinion of friends and acquaintances about the nature of the relationship, and that the applicants have also provided evidence about the joint social activities they share together whilst sharing a household in Ethiopia during the applicant’s visits to that country over the last few years. These social activities include family activities with the adopted children, visits to bars and pubs and the movies.

30. The Tribunal, after consideration of this evidence, finds that the applicants can demonstrate social aspects to their relationship which indicate that they are in a genuine spousal 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.

31. The applicants have provided evidence in regards to the nature of the commitment that they have, the duration of the relationship, and in particular the length of time they have lived together over that time and the degree of companionship and emotional support they draw from each other which the Tribunal, after consideration of the evidence, finds credible.

32. Therefore, the Tribunal finds that the applicants have demonstrated a level of commitment to each other which testifies to the genuineness of the relationship.

    ·Any other circumstances of the relationship.

33. The Tribunal has considered all the evidence presented by the applicants and finds that they do have a mutual commitment to a shared life to the exclusion of others; and that they have a genuine and continuing relationship; and do not intend to live separately on a permanent basis.

34. 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.

35. Therefore the visa applicant meets cl.309.211 and cl.309.221.  

36. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

37. In regard to the secondary applicants, the Tribunal finds that they are members of a family unit of a person who satisfies the primary criteria.

    decision

38. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

39. The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    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).