Cooper (Migration)

[2019] AATA 6039

Cooper (Migration) [2019] AATA 6039 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Alice Cooper

VISA APPLICANT:  Mr Karney Wowah

CASE NUMBER:  1805867

DIBP REFERENCE:  OSF2012/097353

MEMBER:Rosa Gagliardi

DATE:21 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 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 21 October 2019 at 5:53pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – genuine and continuing spousal relationship – joint ownership of property – power of attorney – parties represent themselves to others as spouses – financial circumstances do not permit joint ownership of assets or liabilities – ongoing geographical separation – evidence of communication between parties – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 375A
Migration Regulations 1994 (Cth), r 1.15A, 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 8 December 2014 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 25 May 2012 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 because he/she was not satisfied that the parties were and are in a genuine and continuing spousal relationship as set out under r.1.15A.

3. This matter initially came before the Tribunal as it was then constituted on 8 July 2016. The matter was affirmed. On 1 March 2018 the matter was remitted by consent on the basis that the Department of Home Affairs had issued a s.375A certificate of the Migration Act and the applicant was unaware of the certificate which held information relevant to the review.

4. The review applicant/sponsor appeared before the Tribunal on 10 and 16 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, Mr Karney Wowah, overseas.  Additionally, several witnesses were in attendance: Ms Beatrice Workolo, friend; Caesar Gardner, Church Pastor; Sidika Cooper, the sponsor’s son; and Mr D. Cooper, the sponsor’s brother.

5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Initially the applicant had applied for this Partner visa in 2008 but it was rejected.  He applied again around the time the sponsor was pregnant with their daughter and when they were married in 2012 but this application was also rejected.  On any analysis the relationship is a longstanding one, stretching over eleven years now.

8. In the view of the Tribunal as currently constituted, there were several reasons for the refusal which detracted from the sponsor’s and applicant’s credibility which ultimately the Tribunal as it is currently constituted does not consider to be relevant to whether or not the parties were, and are, in a genuine and continuing spousal relationship.

9. In the first instance, much has been made of the evidence given by the applicant in relation to the sponsor’s background in terms of when she was living with her parents and when she left for the Ivory Coast along with her sisters, and when war broke out in Ivory Coast they left for Guinea.  The Tribunal agrees that ideally partners should be aware of a partner’s precise past. But it is not implausible that the applicant may not have perfect recall about something that occurred in the sponsor’s distant past.  Such a lack of understanding of the sponsor’s past is not something a decision maker  can rely on heavily in considering whether the relationship is genuine and continuing.  The decision in He v MIBP [2017] FCAFC 206 sets out the importance of focussing on the relevant matters to be assessed in making a decision of this nature.

10. Both the applicant and the sponsor have had children with separate partners.  On 20 August 2014 the sponsor advised the Department that she had had two children with another partner named Namonkoah.  This information was not initially disclosed to the Department and it was considered that this reflected poorly on the credibility of the parties.

11. Furthermore, when the applicant previously applied for a visa the delegate requested a DNA test between the applicant and another child (Garmai Cooper) to establish parentage by the applicant, but the sponsor advised the Department that she was not sure as to who the father was and she did not undergo the DNA test.  At hearing she stated that she had had a relationship with another person after she and the applicant lost touch shortly after becoming acquainted with one another.

12. The Tribunal considers that in some circumstances the refusal to undergo a DNA test goes to the very essence of whether two persons are in a genuine and continuing spousal relationship.  In this case, however, the sponsor at hearing explained she had had a fleeting sexual relationship with another person.  The courts have been clear in establishing that a dalliance with another party does not render a long-standing relationship any less genuine or continuing.  In this case, the parties had only started off on their relationship and it was evident that the sponsor at hearing was embarrassed about what had happened. 

13. Further, at the previous hearing there was some concern that the sponsor who now cares for six children (two of whom belong to the applicant/birth certificates sighted), was unclear about where she was living precisely, and whether she had notified Centrelink of her movements.  There was also a lack of clarity as to whether the sponsor’s children lived with the sponsor at any time and not her mother, their grandmother – something the Tribunal places little weight on in terms of whether the parties are in a genuine and continuing spousal relationship, as the children may be living with her mother some of the time, without it having an adverse bearing on the nature of the relationship.

14. At hearing the Tribunal also put to the sponsor and applicant the allegations that had been made that the relationship was not genuine and continuing and that the applicant was using the marriage as a vehicle to enter Australia.  The Tribunal has had regard to the sensitive information about the applicant’s identity and his alleged associations but the Tribunal has not been able to find on file any probative evidence to indicate such allegations are well-founded.  The sponsor was shocked to hear about the allegation regarding that the relationship was not genuine, and was convinced that an ex-partner may have been attempting to cause difficulty for her out of spite.  In any event, should probative evidence come to light, it will be open to the Department to cancel the visa. 

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

    Whether the parties are in a spouse or de facto relationship

15. 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.

16. ‘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?

17. 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 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?

    Financial aspects of the relationship

18. The sponsor stated that she sent money to the applicant for food and other needs.  The Tribunal has sighted evidence of money transfers to the applicant.  While these might be sporadic, the sponsor is attempting to manage a family of five children on her own and it would be unreasonable to expect that she would have a great deal of discretionary spending money to send to the applicant.

19. The Tribunal also notes that the sponsor has travelled to China on several occasions as she is running a beauty salon and sourced her materials from there.  She also assisted the applicant with wholesale purchase of goods from China so that he could provide for himself overseas.  On one occasion they have also met in China for this purpose.

20. Significantly, the sponsor has now provided evidence of joint ownership of property in Liberia purchased on 31 May 2015.  Evidence has also been submitted of the sponsor having appointed the applicant as having power of attorney over her affairs.

21. Given the parties’ ongoing geographical separation it would be unreasonable to place adverse weight on limited evidence of the parties having joint ownership of assets; joint liabilities; significant pooling of their financial resources; or of legal obligations owed to the other party.  In any event, their personal financial circumstances do not permit it. 

    The nature of the household

22. At the time the Department made its initial decision in December 2014, it was noted that the parties had not established a joint household and that “They have spent a limited amount of time together, with the sponsor only travelling to West Africa to reunite with the applicant”.  The movement records show that considering the sponsor’s parental responsibilities, including her work commitments and the cost of regular travel between Liberia (where the applicant resides), the applicant has been to visit the applicant on several occasions.  Photographic material from the sponsor’s phone was spontaneously sought at hearing and the sponsor produced evidence of the parties in household situations in Liberia on her travels there.  The photographic material on depicting the applicant and sponsor together with their daughter supports their contention that they represent as a family unit in Liberia.

    The social aspects of the relationship

23. The Tribunal found the strong evidence by the witnesses at hearing most compelling, including that of the Pastor of the Church at which the sponsor attends regularly.  Pastor Gardner stated that he was the sponsor’s confidante and had witnessed first-hand the deleterious effect of the applicant continuing to remain offshore while the sponsor was in crisis trying to care for her family alone.  Pastor Gardner emphasised that as a congregation they had prayed together for the reunification of the applicant and the sponsor and that accordingly the relationship was widely recognised within the church community.  A statutory declaration from a member of the sponsor’s congregation has been submitted. 

24. The sponsor’s son also gave credible evidence about how the applicant was the only father figure he had and that he wanted to be able to have the support of a father in Australia.  A letter has been penned to the Tribunal by one of the children, on all six children’s behalf, stating, among other things, “Over the years we have grown up without a father to protect, lead and advise us as we grow into diligent individuals.  Personally, not having my father here has affected me negatively.  It’s been hard for me to see everyone having their dads come to watch school productions and participate in parent teacher interviews but I don’t get that opportunity.  Having him here for my year twelve graduation will mean the world to me…Our father being here will not only benefit us but will also release our mom from a lot of stress.  As an eighteen year old in year twelve I have learned to adapt to the idea of having one parent and being able to help out my mother and carry some of her struggles and I don’t want my siblings to have those feelings or responsibilities…Our parents love one another, our mom has been trying to get our father here since my earliest memory of eleven.  When mom would go to Africa and spend months with her husband, although we were with our grandmother it was still hard being away from both parents…”.

25. The sponsor stated at hearing convincingly that her mother had also been affected by the delay in the applicant coming to Australia and she was concerned about the sponsor’s future in raising her children alone.  The sponsor’s brother also provided his support to the relationship at hearing, stating that he tried to assist his sister but that she obviously needed the applicant to be in a family relationship with her.

26. The Tribunal has also sighted evidence of the wedding attended by others.  More recent photographs depict the sponsor and applicant and their daughter together, and with others.

27. A friend of the parties, Duah Olivia Williams, also provided a letter to state that she had known both parties on a long-term basis and that she was one of the first people the sponsor had told about her marriage.  Ms Williams also wrote, “I know of the legitimacy of their relationship as I am a close friend and god mother to one of their daughters”. 

28. The Tribunal is satisfied that the witnesses giving evidence are persuaded that the relationship is genuine and continuing.  Furthermore, the Tribunal is satisfied that to the extent that the parties have been able to, they have represented themselves as spouses in a genuine and continuing relationship.

29. Significantly, the sponsor has also provided a copy of her Facebook pages in which third parties have referred to her and the applicant as being in a couple relationship.

    The nature of the persons’ commitment to each other

30. The Tribunal is satisfied that the applicant and sponsor have maintained a commitment to one another over 11 years or so.  The Tribunal places store on this matter. 

31. The Tribunal has sighted evidence of communication between the parties indicating that the parties are in communication on a regular basis and also as a family. 

32. The Tribunal has also found the evidence at hearing by both parties that they want to live together as a family convincing. 

33. To a large extent, the Tribunal has relied on the credibility of the applicant, sponsor, the sponsor’s family members and others who have submitted compelling evidence that the relationship is genuine and continuing and that furthermore, the separation was creating difficulties for the family unit in Australia.  Evidence has been submitted by a Medical Social Worker underlining how the sponsor had spoken to the Social Worker about the need to have her husband’s support both emotionally and practically.

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 at 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.

    DECISION

37. 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.300.211 of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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).