Fulton (Migration)

[2023] AATA 1487

Fulton (Migration) [2023] AATA 1487 (25 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Linda Dell Fulton

VISA APPLICANT:  Mr Benjamin Agyakwa Antwi

REPRESENTATIVE:  Ms Cindy Zhao

CASE NUMBER:  1901077

HOME AFFAIRS REFERENCE(S):          BCC2017/308786

MEMBER:Naomi Schmitz

DATE:25 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

Statement made on 25 May 2023 at 11:02am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to live together as spouses – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359A, 360, 363A
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 300.216, 300.221

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 to refuse to grant the applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 23 January 2017. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 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.

3. The delegate refused to grant the visa on 7 November 2018 on the basis that the applicant did not satisfy cl.300.216 and cl.300.221 of Schedule 2 to the Regulations.

4. On 16 January 2019, the review applicant, applied to the Tribunal for a review of the refusal decision. The sponsor provided a copy of the delegate’s decision record to the Tribunal.

5. On 8 November 2022, the Tribunal invited the review applicant under s.359A of the Act to comment on or respond to information that would be a reason or a part of the reason for affirming the decision under review namely the applicant’s migration history. The notice stated that this information is relevant to the review and would be a reason or a part of the reason for the Tribunal affirming the decision under review as it raises doubts that the parties genuinely intend to live together as spouses.

   The particulars are set out below:

   ·     The visa applicant, Mr Benjamin Agyakwa Antwi’s migration records indicate on 26 January 2016 the visa applicant applied for a Visitor (Subclass 600) visa that was refused on 1 February 2016.

   ·     In that application the applicant stated the purpose of his visit was to visit a friend, namely the review applicant Ms Linda Fulton.

6. The s.359A notice also invited the review applicant to comment on or respond to information regarding her travel movement records. The invitation advised that this information was relevant to the review because the review applicant’s migration history disclosed that she had spent limited time offshore with the applicant and therefore raised doubts as to the nature of the parties’ commitment to one another.

   Travel movement records disclose:

   ·     You departed Australia on 17 February 2015 and returned on 1 April 2015; and

   ·     You subsequently departed Australia on 1 September 2016 and returned 8 October 2016.

7. The invitation to comment on or respond to information advised that if the review applicant did not comment on or respond to the information put to her under s.359A in writing by 22 November 2022, the review applicant would lose any entitlement she might have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal would make a decision on the information it had without taking any further steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act.

8. On 9 November 2022, the Tribunal invited the review applicant under s.360(1) of the Act to appear at a Tribunal hearing by video-link commencing at 8:30 am (QLD time) or 9:30 am (VIC time) on 24 November 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

9. The review applicant did not comment on or respond to information pursuant to s.359A of the Act. As the review applicant did not comment on or respond to information pursuant to s.359A of the Act, the review applicant no longer had a right to appear before the Tribunal pursuant to s.360(3). The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear.[1]

   [1] Hasran v MIAC [2010] FCAFC 40

10. On 23 November 2022, the hearing scheduled for 24 November 2022 was cancelled and the review applicant was notified of the cancellation of the hearing by email. The letter advised the review applicant that the Tribunal Member would proceed to make a decision on the information before the Tribunal, including information received up until the time of decision.

11. On 23 November 2022, the review applicant provided various documents including a statement from the review applicant; two statements from the applicant; statements and statutory declarations from third parties in support of the parties; nine photographs of the review applicant during her 2016 visit to Ghana; WhatsApp records between the applicant and review applicant; fund transfers from the review applicant; the applicant’s ANZ bank statements 2019-2022; a legal will signed by the review applicant on 9 November 2022; and the review applicant’s vehicle registration (caravan); two photographs of the caravan; three letters from marriage celebrants; and a statement and email from the review applicant explaining the absence of missing chat records and joint bank account with ex-husband.

12. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), using the contact information provided by the review applicant. In these circumstances the Tribunal has proceeded to decide the review application on the evidence available to the Tribunal.[2]

    [2] s.359C(1) and s.359C(2) [Part 5] of the Migration Act 1958 (Cth)

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    ISSUES AND LAW

14. The Prospective Marriage (Temporary) class (TO 300) visa is for persons seeking to enter Australia to marry an Australian citizen, Australian permanent resident or eligible New Zealand citizen, who is their prospective spouse, with a view to remaining permanently. In the present matter the review applicant is an Australian citizen.

15. The issues in the present case are whether the requirements in cl 300.216 and cl 300.221 are met. This requires the Tribunal to be satisfied that the parties genuinely intend to live together as spouses, both at the time of the visa application and at the time of this decision.

    BACKGROUND

16. The applicant is a citizen of Ghana, currently aged 32 years. The applicant has no declared previous marriages. Information submitted to the Tribunal claims that he is unemployed and has been unable to obtain any employment during the parties’ claimed relationship.

17. The review applicant is a 70-year-old Australian citizen residing in Queensland, Australia. The review applicant has been previously married, marrying on 23 June 1973 and divorcing on 9 June 2009.[3] There are three children from this marriage.[4]

    [3] Federal Magistrates Court of Australia Certificate of Divorce granted 10 July 2009

    [4] Department file: BCC2017308786, CLF202086999

18. In September 2014, the review applicant decided to take long service leave from work and travel to Ghana, landing at Accra, Ghana on 15 February 2015. The review applicant was greeted at the Accra Airport by the applicant, who had been recommended by an acquaintance of the sponsor’s friend. The applicant collected the review applicant from the airport and took her to her accommodation. The review applicant claims that she asked the applicant and his brother ‘Sam’ to stay with her to enjoy the accommodation facilities, including a swimming pool, a basketball court and barbeque. The review applicant claims she spent time with the applicant, including shopping, sightseeing and that he would escort her to wherever she needed to go, ensuring her safety, such as when withdrawing money from automated teller machines (ATMs). During her visit, the review applicant met the applicant’s family, including his parents, brother, uncles, cousins and friends.

19. The parties claim that after a couple of weeks of meeting one another, that they developed a ‘strong bond’ and found they had things in common, including music and movies which they enjoyed listening to and watching together. Towards the end of her stay in March 2015, the parties claim they knew they loved each other and decided to get married.[5]

    [5] Review applicant statement dated 9 December 2016

20. In submissions filed, the parties claim ‘they started living together as a couple soon after they met, sharing the same room, in the same bed, and there were plenty of physical sparks between them’.[6]

    [6] Legal submission 23 November 2022

21. The delegate’s decision record and the visa application details that the parties committed to a shared life together on 1 March 2015; that the parties became engaged on 4 April 2015; and that the parties intended to marry on 1 November 2017.

22. The review applicant returned to Australia on 4 April 2015. Upon her return, the review applicant claims the parties decided to apply for a Visitor (Subclass 600) visa which was refused. The review applicant claims the purpose of the visit was to allow the applicant to ‘visit Australia to see what he thought of eventually living here’.[7]

    [7] Ibid.

23. The review applicant subsequently departed Australia on 21 September 2016 and returned on 8 October 2016.[8] Information before the Tribunal indicates that this time was spent offshore with the applicant in Ghana. The parties claim that they lived together again for eight weeks and that ‘this trip further consolidated their relationship and commitment to be together’.[9]

    [8] Delegate’s decision record

    [9] Review applicant’s statement (n 5)

24. The parties claim in the intervening period that they maintained communication initially via Skype, and later WhatsApp ‘almost every day for several hours at night’.[10] The review applicant claims she sends the applicant money regularly, including in 2016, approximately $300 per fortnight to pay for his food and bills.

    [10] Ibid.

25. The review applicant claims she has been unable to return to Ghana since her 2016 visit, due to financial difficulties and suffering ill-health, including bowel cancer in 2018 and a stroke caused by blood clots, affecting her cognitive and speech functions. She also claims to suffer from arthritis and need the aid of a wheelchair. She claims to have retired early due to her poor health and is currently in receipt of a Disability Support pension. The review applicant submits that this should not be viewed as evidence that the parties do not have an intention to marry or that they do not have a genuine intention to live together as spouses.[11]

    [11] Legal submissions and ANZ bank records showing pension deposits

    Representative’s Submission – Intention to Marry

26. As outlined in [3] above, the visa was refused on the basis of not satisfying cl.300.216 and 300.221. Although it was not a reason for the visa refusal, the parties claim that they satisfy cl.300.215 which requires that at the time of application the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period. In support the parties provided three letters form marriage celebrants. At the time of application, the parties provided a letter from Sheryl Gay, Civil Marriage Celebrant dated 19 December 2016 stating a Notice of Intended Marriage had been lodged, with the wedding to occur on 1 November 2017, in Toowoomba, Queensland. A second letter dated 30 March 2018, by Civil Marriage Celebrant, Janice Bradley, states the review applicant signed a Notice of Intended Marriage on 30 March 2018, with the wedding to take place on 25 August 2018 at Luddenham, New South Wales. A third letter dated 15 November 2022, from Civil Marriage Celebrant, Lyne C Taylor, states the review applicant lodged a Notice of Intended Marriage, with the marriage ceremony to take place on 1 February 2023 at Glebe House, Booval, Queensland. This refers to a ‘non-refundable’ deposit for the ceremony.

27. The Tribunal notes that no evidence such as financial or other documentary evidence were provided to support that the parties had an intention to marry, such as receipts for a wedding venue deposit, a wedding photographer, quotes for flowers, purchase of wedding rings and wedding attire (i.e. dress and tuxedo suit) and no general information such as the total number of wedding guests in attendance, and the total cost of the wedding, which raises serious concerns regarding the parties’ claims. This is particularly so, given the parties intended to marry in February 2023 and therefore a greater level of preparation and decision making would be expected. The Tribunal further notes that in the letter dated 19 December 2016, the celebrant had never met the applicant, including virtually to discuss the wedding plans There is no evidence to indicate in the subsequent letters that the celebrants have had any discussions with the applicant which casts doubts on the parties intention to marry. The Tribunal considers the paucity of the evidence does not support that the parties at the time of application had an intention to marry, and that the marriage would occur within the visa period. Therefore, the Tribunal finds that the applicant does not satisfy the requirements of cl. 300.215.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Do the parties genuinely intend to live together?

28. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as 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 considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in reg 1.15A(3) for spousal relationships: reg 1.15A(4). While it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.

29. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings.

    Financial aspects

30. The applicant and review applicant do not have any joint assets, any joint liabilities and do not jointly pool their financial resources together. The review applicant claims the parties have demonstrated a strong financial commitment throughout their relationship since 2015 with the review applicant regularly transferring money to him and in support relies on the money remittances and her bank statement. The parties claim that the applicant is not in a position to provide any financial support to the review applicant, as he has been unable to find steady employment and is usually dependent on the review applicant to pay for his food, clothing, travel and household expenses. The parties however claim the applicant’s ‘love, care and spiritual support have been invaluable’ to the review applicant.

31. An undated handwritten statement was provided by Gracious Tsitsi, who claims to be a ‘mobile money agent’ for Biney Multi Business Enterprise. She states that ‘Benjamin Antwi is well known to me as I see him regularly when he comes to pick up the money that his wife Linda has sent him’.

32. The Tribunal has carefully reviewed the financial records and considered them in the context of the parties’ financial circumstances, length of their relationship (over eight years), the frequency of transfers and quantum. However, overall, the Tribunal does not regard the money transfers as significant and not of a pattern expected of a genuine spousal relationship.

33. The Tribunal further notes that the review applicant equally sent money to third parties, including to the applicant’s brother, Samuel Antiwi, exclusively between 17 October 2018 and 15 January 2019, and to Samuel Antiwi and Gracious Tsitsi between 12 February 2022 and 13 November 2022. Of significance, the Tribunal notes there was only one direct transfer to the applicant between 12 February 2022 and 13 November 2022, on 12 February 2022 in the sum of 80.00GHS equivalent to 17.12AUD and that Samuel Antiwi also received the same amount on 12 February 2022. The Tribunal has considered the statement of Gracious Tsitsi who claims to have received funds on behalf of the applicant, however the Tribunal does not accept these claims. The Tribunal finds it implausible that the review applicant would send money to third parties for the applicant to collect, when she had previously successfully sent money directly to the applicant. The Tribunal also finds these claims unconvincing, given the review applicant was able to send money simultaneously to both the applicant and his brother on 12 February 2022.

34. Whilst it is acknowledged that the parties live geographically apart in different countries and cannot be expected to have acquired major assts or liabilities together, or to have pooled financial resources, the Tribunal does not regard the financial evidence submitted as constituting convincing evidence of the financial aspects of the parties’ relationship and places limited weight on them.

    The nature of the parties’ household

35. The parties claim that during the review applicant’s time Ghana in 2015 and 2016, that they lived together as a couple. The parties rely on the review applicant cooking food for the applicant and the applicant accompanying the review applicant everywhere to ensure she was safe and not taken advantage of. This included bargaining for the review applicant and escorting her to ATMs. The parties also claim that the financial support provided to the applicant was used to fund his household and that the parties would communicate via video showing their respective residences.

36. The review applicant claims that she retired early due to her health conditions and that she used her superannuation payout to purchase a luxury caravan. The parties claim that they intend to live together in the caravan and to travel in it around Australia. The review applicant instructs that the caravan is attached to a house where her former foster daughter, Kaighla, and her family reside. The caravan contains one double bed in a tiny bedroom and the applicant claims that the double bed was arranged with the intention for the couple to sleep in the same bed. In support the parties rely on two photographs of the caravan (exterior and interior) and a registration of motor vehicle notice.

37. As the parties live in separate countries, they cannot be expected to have set up a household akin to two persons who reside in the same country. Their opportunities for being together have been confined to when the sponsor has travelled to Ghana in 2015 and 2016, for two months and one month respectively. The Tribunal has carefully considered the evidence submitted but does not consider it convincing evidence of the nature of the parties’ household. The Tribunal notes in the parties’ statements dated 9 and 15 December 2016, that they do not mention residing together as spouses and it is not supported by any corroborative evidence such as having accommodation in joint names. The Tribunal also does not regard cooking for the applicant and taking the review applicant to places in Ghana as strong evidence of a joint household. The Tribunal further notes that no financial or other documentary evidence was submitted to support that any of the funds transferred by the review applicant to the applicant were used to establish his household in Ghana. The Tribunal also does not regard the parties’ visually sharing their surrounds whilst communicating via phone as establishing a household. Whilst the Tribunal accepts that the review applicant owns a caravan, after considering the totality of the evidence, the Tribunal is not satisfied that the nature of the household supports that the parties generally intend to live together as spouses.

    Social aspects of the relationship

1. The parties claim that during the review applicant’s 2015 trip to Ghana, that they became committed in their relationship and on both trips presented themselves to family and friends as an exclusive couple. In support the parties submitted nine photographs depicting the review applicant in 2016, some of which include the applicant and a few with family and friends. The Tribunal has had regard to the photographic evidence. Although it shows the parties have undertaken some social activities together and been in the company of family and friends, the Tribunal does not regard it as convincing evidence of the social recognition of the parties’ relationship.

2. The review applicant claims upon her return to Australia in 2015, that she notified her family and friends of her relationship with the applicant and continued to present their exclusive relationship to family and friends thereafter. The review applicant claims she was disappointed some people including, her family members did not support her relationship. Nevertheless, she claims that she is strongly supported by Kaighla Gould, her former foster daughter, her daughter Angela Fullton, her grand-daughter Maeve Fulton-Langford and sister, Donna Hawkins. The Tribunal has had regard to each of these statutory declarations, however, overall does not consider that they provide strong evidence of the social aspects of the relationship, as none of these witnesses have directly observed the parties spend time together and observe how their relationship has developed. The Tribunal also considers the contents to be vague and unsatisfactory. The parties also claim they have the support of the applicant’s family and provided statements from the applicant’s mother and brother. The Tribunal has considered these statements, however, similarly considers them to be vague and overall of limited probative value.

3. As outlined in [5] above, the applicant applied for a Visitor (Subclass 600) visa on 26 January 2016 that was refused. In that application, the applicant stated the purpose of his visit was to visit a ‘friend’, the review applicant. The Tribunal notes at this time, the parties were each other’s fiancés, becoming engaged on 4 Aril 2015. This inconsistency in terminology, that is being ‘friends’ as opposed to ‘fiancés’ casts significant doubt as to the true nature of the parties’ relationship and that the parties intend to live together as genuine spouses. The Tribunal places adverse weight on this evidence in this regard.

4. The Tribunal has had regard to the WhatsApp communications. Whilst the Tribunal acknowledges that there has been some communication between the parties, it does not support that the parties have contact on almost a daily basis. The Tribunal has also had regard to the content, which it regards as superficial and contrived, without discussing anything of a substantive or personal nature.

5. For example, on 11 January 2016:

   Review applicant: Honey I love you so much and I must go to bed now my husband

   Applicant: Ok honey

   Applicant: Thank you so much

   Applicant: We are almost done

   Applicant: I adore you so much baby

   Applicant: Sweet dreams about us ...

6. For example, on 19 January 2017:

   Applicant: My journey was fine babe, thank y

   Applicant: How is everything at your place.

   Review Applicant: Good honey, did you sleep O

   Applicant: Yes babe just woke up, I love you

   Review Applicant: Aww honey I love you more

7. Overall, based on the evidence before the Tribunal, the Tribunal is not satisfied that the parties have provided cogent evidence of the social aspects of their relationship and that they presented themselves to family and friends as being in a committed relationship. The Tribunal regards the photographic evidence as minimal and of limited value. Furthermore, the applicant's 2016 Visitor (Subclass 600) visa application, raises serious concerns that the parties genuinely intend to live together as spouses, and rather the visa which is the subject of this review is being used to facilitate a migration outcome. 

   Nature of commitment to one another

8. The review applicant claims that she was diagnosed with bowel cancer in 2018 and underwent surgery to remove the cancer. She also claims to have had a stroke straight after the operation whilst hospitalised and has been unable to return to Ghana. She claims as she is currently living in Ipswich, she is unable to retrieve her medical records from Sydney; however, is willing to provide medical records if required by the Tribunal. The applicant claims that her arthritis is worsening, and she has decreased mobility. She claimed she cannot walk far without aid. She states Kaighla’s husband is her carer; however, as they have four small children, she is mostly self-reliant for her daily welfare and activities.

9. The review applicant claims that the applicant has been her ‘tower of strength during her cancer treatment and recovery and that his love and attention as well as his spiritual support to her has enabled her to fight off the cancer and strive for quality of life. She claims the applicant has been her ‘lifeline’. The applicant claims he depends on the review applicant for financial support for his basic needs. To show the review applicant’s commitment to the applicant, the review applicant provided a copy of her legal will dated 19 November 2022 where she bequeaths her entire estate to the applicant in the event of her death. The parties have ‘dreams’ that the applicant will move to Australia and that they will travel around Australia in the review applicant’s caravan. The applicant would like to study a management course and contribute to the parties’ finances. 

10. The Tribunal has also had regard to the parties’ claims of commitment and deriving emotional support from one another, however places limited weight on these claims, as they are not supported by any independent and credible evidence. Whilst the WhatsApp records show some general communication, such as asking how one another’s day has gone, referring to activities such as shopping, and the applicant asking the review applicant for money, the Tribunal considers the communications superficial and not of a personal nature and equally consistent with a platonic friendship. Given the parties claim they intend to live as spouses, one would expect the parties to discuss serious life issues, such as the review applicant’s finances, problems and how the parties envision their life together. Considering the length of the parties claimed relationship, the parties have had ample time and opportunity to demonstrate this, and the Tribunal does not accept it is due to the review applicant losing some of her WhatsApp records. The Tribunal has had regard to the legal will, however, considers that it was contrived to facilitate the visa application, noting that it was executed a mere four days before the scheduled hearing and made after being invited to attend a Tribunal hearing.

11. The Tribunal in assessing the nature of the parties’ commitment to one another has had regard to the fact that the parties committed to a shared life together merely 15 days after first meeting and became engaged 49 days later. The Tribunal considers it rapid, with limited evidence to support what led to the decision to enter a serious relationship and reach a decision to commit to marriage. Overall, the Tribunal is not satisfied the parties’ decision reflects the level of consideration that is usual between two persons making a genuine and lifelong commitment to one another.

12. The Tribunal has also considered the review applicant’s claims that her poor health has prevented her from returning to Ghana. As this is not substantiated by any medical evidence the Tribunal does not accept these claims. The Tribunal also does not accept the review applicant’s claims that she cannot produce medical evidence of her treatment due to relocating from New South Wales to Queensland. There are multiple ways in which the review applicant could access her records (i.e. email or post) and the Tribunal does not accept her explanation. It is also not the Tribunal’s role to present the review applicant’s case for her. Overall, the Tribunal is not satisfied that the parties have a mutual commitment as spouses.

    Conclusion

13. On the basis of the above the Tribunal is not satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore cl 300.216 is not. For the reasons outlined above, the Tribunal is also not satisfied that at the time of decision the parties genuinely intend to live together as spouses. Therefore cl 300.221 is not met.

14. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

15. The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

    Naomi Schmitz
    Member