Ereck (Migration)

[2020] AATA 5624

Ereck (Migration) [2020] AATA 5624 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mayor Ereck

VISA APPLICANT:  Mrs Talent Enia Matsika Ereck

CASE NUMBER:  1732143

DIBP REFERENCE(S):  BCC2016/3496654

MEMBER:Helena Claringbold

DATE:18 November 2020

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 18 November 2020 at 4:36pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – money transfers for household expenses – applicant lives in the sponsor’s property – sponsor’s responsibility for the visa applicant’s daughter – family and social recognition of the relationship – sponsor’s visits to Zimbabwe – applicant’s care for sponsor’s family – sponsor did not disclose previous relationships – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 5F, 359
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 27 September 2016, Mrs Talent Enia Matsika Ereck, the visa applicant, applied for a Partner (Provisional) (Class UF) visa. The application was based on her spousal relationship with Mr Mayor Ereck, the sponsor and review applicant.

2. On 18 October 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant and the sponsor are genuine spousal partners. Therefore, the visa applicant did not meet cl.309.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 19 December 2017, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision brought by the sponsor.

3. On 3 November 2020, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The sponsor was represented in relation to the review by his registered migration agent (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, individually and completely, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file 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

7. The visa applicant was born in 1984 in Harare, Zimbabwe. Her parents are deceased, and she did not declare any siblings. From 2001 to 2005 she lived with Mr Collins Matare.  There is one child from this relationship Tatenda who was born in 2002. She lives in Zimbabwe.

8. The sponsor was born in 1964 in Harare, Zimbabwe. His parents are deceased. He has one sibling who lives in Zimbabwe. On 22 September 2007, he married Ms Ereck. On 20 March 2014, Ms Ereck and the sponsor divorced. The sponsor did not declare any children from this relationship. He didn’t declare any other previous marriages or de facto relationships. The sponsor declared having five children. Three of his children live in Australia and the remaining two children live in Zimbabwe. He entered Australia on 11 February 2007 as the holder of a Subclass 457 temporary work skilled visa.  On 25 August 2010, he was granted a combined Subclass 820/801 partner visa and on 13 March 2012, he acquired Australian citizenship.

9. On 28 September 2010, the parties met in Bulawayo, Zimbabwe. The parties ‘maintained contact with each other by way of telephone and in 2013, they became engaged. On 24 December 2015, the parties married in Harare, Zimbabwe.

   Is the visa applicant the spouse of an eligible person?

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

    Are the parties validly married?

11. At the time the visa application was made, the visa 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 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).

    CLAIMS AND FINDINGS

    Are the other requirements for a spousal relationship met?

13. 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 sponsor’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.

    The financial aspects of the parties’ relationship

14. In December 2017, the migration agent declared the following. Prior to the parties’ marriage the sponsor owned three properties, [Address 1], [Address 2], and [Address 3]. The applicant collects the rent for one of these properties.  The rent is used to pay rates, water bills, electricity and transport for the visa applicant. The visa applicant is a teacher and receives a monthly salary of $514 with a net salary of $328.56.  $100 is deposited in the sponsor’s saving’s account. The sponsor has sent money to the visa applicant since 2012.  An insurance policy in the visa applicant’s name is dated 1 July 2017. It recorded a Vincent Masiiwa who is listed as a ‘brother (cousin)’ as beneficiary and Mr Masiiwa, the visa applicant’s daughter and the sponsor as ‘dependents to be covered’.

15. The parties told the Tribunal the following. The sponsor has been sending money to the visa applicant since 2012.  The money supports the sponsor’s properties, family members and the visa applicant’s living costs. Money transfers have been provided to support these claims. The visa applicant manages the sponsor’s properties and oversees family members and their wellbeing. The rental money the visa applicant collects does not cover all needs and the sponsor sends additional money to cover their responsibilities.  The sponsor told the Tribunal that he has been saving toward the purchase of a house for the parties and has had approval for a mortgage. He provided bank statements and bank documents to support this evidence.

16. The parties do not have any joint ownership of real estate or other major assets or joint liabilities.  They do not pool their financial assets, especially in relation to major financial commitments. The sponsor has a legal obligation to the visa applicant and her daughter with regard to the insurance policy. The Tribunal accepts that the sponsor supports the visa applicant with day-to-day household expenses.

    The nature of the parties’ household

17. The sponsor lives in Australia. Previously the sponsor’s children lived with him but they have since moved out. Martin moved out four years ago and works as a physical trainer; Michael is a nurse and manages a nursing home; and Michelle is in Queensland and about to undertake a nursing exam. The visa applicant moved into [Address 1] after the parties’ marriage and she continues to live there. The property is not finished and over the years they have worked toward completing the property. Her daughter lives with her father and comes to stay with her when she is on school holidays.  When the sponsor visits, they live together and share housework. The parties provided consistent information about their household and their families. The Tribunal accepts that the sponsor has some responsibility for the visa applicant’s daughter and that they have lived together as claimed and that they share the responsibility of housework.

    The social aspects of the parties’ relationship

18. The parties told the Tribunal the following. The sponsor has visited the visa applicant regularly since 2015.  During his visits they visit family members.  They like to go to the movies or to a ‘Brie’ (barbeque) or dine out. They also attend family celebration such as the visa applicant’s nephews wedding.

19. Third-party statements in 2015 provide the following information. Miedzo declared knowing the parties for six years and that they had been married for year.  They married on 24 December 2015 and have a genuine relationship. A bishop from Harare, declared knowing the sponsor for many years. The parties are married.  No photographs (of the wedding) were taken for some unknown reason. The parties stay at their home in Bulawayo and the sponsor frequently visits the family home at [Address 3].

20. Third-party statements in November 2017 provide the following information. Regai, an aunt of the visa applicant declared that the parties are married and stay at [Address 1]. She was active in negotiating the ‘bride price’. The sponsor has met some of the visa applicant’s family including her grandmother Ms Gria Muntenga. The sponsor is now considered their son and he has participated in family programs. Fundayi, an uncle of the visa applicant declared he was present at the ‘bride price’. They live at their matrimonial home in Bulawayo where they are sending his nephew Vincent to college to study engineering. Linda, a cousin of the visa applicant declared the parties are married and they stay at [Address 1]. Having the sponsor in their family is a blessing and their grandmother loves him like a son. The sponsor attends family gathering and visits Linda’s home and she and her siblings visit the parties. Martilda, the sponsor’s daughter-in-law declared the parties are married. She knew the parties before she married Tawanda Ereck. The parties asked Martilda and Tawanda to live in the family home and care for it. The parties have a house and live in Bulawayo. Murera, has known the sponsor for many years. He represented the Ereck family during the ‘bride price’ (customary marriage). He is called to do carpentry work at the matrimonial home. The parties are married.  Tawanda, the sponsor’s son lives at the family home [Address 3]. The parties are customarily married and had a low-profile marriage certificate signing. Machokoto, a friend of the visa applicant since 2007 visits the visa applicant at her home in Bulawayo. The visa applicant is married to the sponsor. Vincent, a cousin of the visa applicant stated that the parties pay his college studies. The sponsor is the owner of the property he is staying. As the visa applicant works at Gweru, Vincent is the one who is at their property, paying bills, purchasing building materials, monitoring contractors and will be offering services on the completion of the parties’ house. Robson has known the parties since 2011 and declared that the parties married in 2015. The visa applicant joined him/her at the primary school as a teacher. The sponsor has visited the visa applicant several times and the parties have assisted the school with donations.  Their matrimonial home is [Address 1]. Telephone records have been provided listing the sponsor’s calls to various numbers. Photographic evidence depicts the parties together and with others in different locations. The Tribunal accepts that the parties represent themselves and are recognised as being in a married relationship and that they plan and undertake joint social activities together.

    The nature of the parties’ commitment to each other

21. Copies of several email exchanges between the sponsor and the visa applicant have been provided. In those dated 2010, the parties talk of staying in touch and progressing their relationship. In emails dated 2015, the sponsor writes of his love and of wanting to be with the visa applicant. They exchange information about tenants and maintenance work on the sponsor’s properties and the visa applicant expresses thoughts of having children with the sponsor.

22. Several handwritten and typed letters have been provided from the sponsor to the visa applicant. One is dated 26 July 2014, where the sponsor invites the visa applicant and her daughter to come to Australia for Christmas so that they can as a family have ‘the greatest Christmas’. Another letter is dated 23 August 2014, in which the sponsor writes of the passing of his mother. He declared that the visa applicant is his ‘pillar of strength’. He expresses the difficulties he is experiencing looking after his children and hopes the visa applicant will accept his invitation to come to Australia for Christmas. In Another letter dated 23 August 2016, the sponsor stated that the parties met in Zimbabwe in 2010, after his previous marriage had broken down and he filed for divorce. He stated that the visa applicant helped look after his sick mother.  She helped in paying his bills and looking after his properties in Zimbabwe and he helped her financially.

23. According to Departmental records, on 20 June 2017, an application for a visitor visa was lodged by a Zimbabwean national residing in the United Kingdom. The reason given for the visa application was that the visa applicant was visiting her boyfriend. The Australian citizen boyfriend recorded in the visa application was the sponsor, in this visa application. In the Departmental interview the visa applicant was asked if she knew the Zimbabwean national. She stated that she didn’t know her and had never heard of her.

24. The migration agent in December 2017, stated the following. It is true that the sponsor invited a friend to come to Australia.  However, it does not mean that they were boyfriend and girlfriend. There was nothing in the content of the letter that the sponsor expressed his love for ‘Linda’.  An email dated 26 May 2017, from the sponsor to Linda has been provided, where the sponsor invites Linda to visit Australia. An undated letter is also provided from Linda where she stated that she wants to correct the statement she made on the visa application that the sponsor was her boyfriend, instead stating that he is a good friend that she has known for many years.

25. The sponsor told the Tribunal that he invited Linda to visit him as a friend. There is no evidence before the Tribunal that the sponsor is in a relationship with Linda.

26. The Tribunal put information to the sponsor under s.359AA of the Act. The sponsor was told the relevance and consequence of the information.  He was invited to comment on or respond to the information and was told he could seek additional time to comment on or respond to the information.  The sponsor commented on the information at the Tribunal hearing. The information put to the sponsor is as follows.

    As part of the visa application the sponsor declared having one partner relationship with Ms Irene Ereck and that he was divorced from Ms Ereck.  He didn’t declare having any other partner relationships.

    On 9 July 2012, the Departmental received the following information. In June 2012, the sponsor left the sponsor of his partner visa. From the beginning of his relationship with his sponsor, he continued in relationships with his ex-spouses Ms Dorothy Mabuto and Ms Nomsa Mguni. Dorothy is Michael and Michelle’s mother and Nomsa is Mduduzi’s mother. Dorothy visited the sponsor from the United Kingdom when he worked in Port Headland. He continued in a relationship with his to obtain a permanent residency visa and Australian citizenship and then to reunite with your ex-partners.

    Other information is that during a Departmental interview the visa applicant stated that the sponsor had been married twice previously. Once to Dorothy Mabuto and that had two children Michael and Michelle with Dorothy once to Nomsa Mguni and you had one child Mduduzi with her. In addition, she stated that you had another child in Johannesburg and another child in Zimbabwe.

27. The sponsor stated the following.  Ms Jane Mary Bakasa and he were classmates.  Ms Bakasa gave birth to his first child Milicent in 1983 in South Africa. His relationship with Ms Mguni was a ‘one-night stand’ and Martin was born in 1984. He married Ms Mabuto in 1985 and Martin lived with them. They were married for seven years and then divorced. His marriage to Ms Ereck ended in divorce. He purchased a house with Ms Ereck in her name as he was not eligible to purchase a property. The allegations are false and made to ensure that Ms Ereck gained the property.

28. The Tribunal is concerned that the sponsor did not disclose his previous relationships in the visa application. However, there is no information before the Tribunal to suggest that the sponsor continues in a partner relationship with either Ms Bakasa, Ms Mguni, Ms Mabuto or Ms Ereck.

29. The parties told the Tribunal the following. The sponsor has visited the visa applicant regularly since 2015 three to four times each year. At other times, they communicate with each other daily. They would like to have a child but have not been successful as yet. The visa applicant has had medical tests but has been assured that there is no medical reason for her not to have a child. They constantly talk about having a child and may undergo IVF in the future. When the visa applicant comes to Australia, they will buy a house which they will decide on together. The Tribunal accepts that the parties met in 2010 and that they married in December 2015.  Since that time, they have lived together for approximately 40 weeks. The evidence demonstrates that they provide each other with companionship and emotional support and see their relationship as long-term.

30. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered all the evidence individually and as a whole including the Department and Tribunal files and the evidence given at the Tribunal hearing.  The Tribunal carefully considered a number of aspects of the sponsor’s oral evidence which concerned the Tribunal because they were inconsistent with the visa applicant’s oral evidence, or, caused the Tribunal to question (more broadly) the reliability of the visa applicant’s oral evidence. Specifically, on one occasion the sponsor provided different information about household expenses. This contrasted with the visa applicant’s information which was succinct, spontaneous and therefore reliable. On another occasion, the sponsor provided different information to that of the visa applicant relating to her work and about them staying with his brother and about paying for certain services. On the other hand, the parties provided detailed and consistent information about the sponsor’s properties and their home. They also provided consistent information about their families and other aspects of their household. Although the Tribunal has concerns about these inconsistencies, it has weighed them against the other evidence of the case and has determined that the inconsistencies are not fatal to the application under review.

1. Overall, the Tribunal is prepared to accept the parties’ evidence about their relationship. The parties have satisfied the Tribunal that at the time of application and this decision they have a mutual commitment to a shared life to the exclusion of all others; that they have a genuine and continuing relationship; or that they live together and not separately and apart on a permanent basis.

2. 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.

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

4. 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

5. 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).