BOAKYE DANKWA (Migration)

[2017] AATA 1474

BOAKYE DANKWA (Migration) [2017] AATA 1474 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Mavis Boakye Dankwa

VISA APPLICANT:  Mr Sylvester Atta Amoah

CASE NUMBER:  1618730

DIBP REFERENCE(S):  OSF2015/074847

MEMBER:Helena Claringbold

DATE:23 August 2017

PLACE OF DECISION:  Sydney

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(2) of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

STATEMENT MADE ON 23 AUGUST 2017 AT 3:46PM

CATCHWORDS

Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Spouse of the Review Applicant – Some pooling of finances – Support statements from family and friends – Photographic evidence – Plans to commence family – Public recognition of the relationship

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulation 1994, Schedule 2 cl 309.211, cl 309.221, r 1.15A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 29 January 2015, Mr Sylvester Atta Amoah, the visa applicant applied for a Partner (Provisional) (Class UF) visa.  The application was made on the basis of his spousal relationship with Ms Mavis Boakye Dankwa, the sponsor and review applicant.

2. On 29 September 2016, a delegate of the Minister for Immigration refused to grant the visa.  The delegate’s refusal was on the basis that the visa applicant did not satisfy cl.309.211(2), cl.309.211(1) and 309.211 because the delegate was not satisfied that the visa applicant is the spouse of the review applicant.  This is a review of the delegate’s decision.

3. On 8 August 2017, the review applicant appeared before the Tribunal on to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record.  The Tribunal also received oral evidence from Ms Boakye Dankwa.  The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department’s file OSF2015/074847, folio numbered 1-151, and the Tribunal file 1618730, folio numbered      1-77 and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the visa applicant is the spouse of the sponsor as defined in s.5F of the Act.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in April 1981 in Sekondi, Ghana.  He is a Ghanaian citizen. His parents live in Ghana.

8. The review applicant was born in April 1984, in Accra, Ghana.  Her father and a brother are deceased.  She has two sisters who live in Australia.  In February 2009, she entered into a relationship with Mr Kojo Appiah. There are two daughters from this relationship, who were born in 2009 and 2011.  She is a registered nurse. On 21 April 2008, she was granted Australian citizenship.

9. In September 2005, the parties met in Accra, Ghana. The parties lost contact and reconnected in 2012. On 10 April 2014, the parties married in Sekondi Takoradi, Ghana.

   Is the applicant the spouse of an eligible citizen?

10. The Tribunal is satisfied that the sponsor, at the time of visa application and at the time of decision, was and is an Australian citizen.

    Are the parties validly married?

11. At the time the visa application was made the applicant provided evidence of her marriage to the sponsor. 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 parties in a spousal relationship?

12. ‘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 husband and wife 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 as to 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.

    FINDINGS

13. On these aspects the Tribunal has considered the evidence before it and is satisfied the facts of this case are as follows:

14. The source of the parties’ income is derived from the visa applicant’s salary as a draftsman and the review applicant’s salary as a registered nurse and from government family assistance. The parties do not have shared financial or individual assets or debts. During the years 2013 to 2017 the review applicant remitted various amounts of money to the visa applicant.  When the visa applicant was away from his home, the review applicant remitted money to the visa applicant’s mother, for the visa applicant’s use. The Tribunal accepts that there is some pooling of financial matters.  It also accepts that the parties live in different countries and have not combined other financial matters.

15. When they married they lived with the visa applicant’s family and his mother ran the household.  Other than this they lived in a hotel in Accra for a short time. The Tribunal accepts that parties live in separate countries and have not established their household.  They provided consistent evidence about their families and family circumstances.  This included information about the review applicant being a single mother of two children; of the assistance the review applicant’s mother provides her and her two grandchildren.  It also included evidence about the review applicant’s persistence in becoming a registered nurse in 2011 and working full time in a hospital endoscopic unit since 2012 and of her determination in gradually completing a masters degree later this year. 

16. The parties’ enjoy being together.  Other than having time with their families and friends, they like to eat out, visit the beach and enjoy open air entertainment. Third party statements from family members and friends attest to the parties’ marriage and to the genuine and continuing nature of the parties’ relationship. They authors stated that the parties’ relationship gradually  intensified and they married and the parties are dedicated to each other and to the review applicant’s children. Photographic evidence depicts the parties on their wedding day, at different locations together and with a group of people

17. The parties have known each other since 2005.  After a lengthy separation they reunited.  The review applicant told the Tribunal that initially she was not interested in having contact with the visa applicant.  However the visa applicant’s dogged persistence resulted in the parties talking to each other in 2012 and they continued to communicate. In April 2014, the parties married. They lived together in the visa applicant’s family home and honeymooned in Accra. The review applicant told the Tribunal that she would have travelled to be with the review applicant more often, except that she has to juggle the care of her children and has limited financial resources.  They envisage working hard to establish themselves as a family.  They intend to have children together.

18. The Tribunal found the review applicant to be a credible witness because she provided prompt responses to questions in an unrehearsed and spontaneous manner. The Tribunal found that the visa applicant provided less credible evidence and was generally uncertain about the timing of events and less able to articulate himself when unexpected questions were put to him. The Tribunal considers that in the case of the visa applicant’s oral evidence, it was nonetheless, largely reliable.  His inconsistent responses appeared to represent someone who was over cautious and exceedingly nervous at hearing.  On the other hand, his responses showed a sound knowledge of the review applicant’s family and the circumstances surrounding the review applicant’s travel to the USA and the birth of her daughters.  After a lengthy Tribunal hearing and prolonged consideration of the evidence individually and as a whole, on balance, the Tribunal accepts the visa applicant’s evidence.

19. In view of all the above, the Tribunal is satisfied that the parties pool some financial matters.  They have undertaken social outings together and present themselves as spousal partners to others and there is public recognition of the parties’ relationship. The Tribunal is satisfied by the parties’ oral evidence at hearing that they demonstrate knowledge of each other’s lives which is commensurate with a couple in a genuine and ongoing spousal relationship.

20. The Tribunal has considered the evidence individually and as a whole. The Tribunal is satisfied that at the time of application and at the time of decision the sponsor and the applicant had a mutual commitment to a shared life as spousal partners to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The applicant therefore meets the requirements of s.5F of the Act.

21. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were and are in a spousal relationship.

22. Therefore the visa applicant meets cl.309.211(2) and cl.309.221 of Schedule 2 to the Regulations.

    DECISION

23. 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 (Partner (Provisional)) visa.

24. 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(2) of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Helena Claringbold  
    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).