Gbeintor (Migration)

[2021] AATA 847

Gbeintor (Migration) [2021] AATA 847 (5 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Kou Gbeintor

VISA APPLICANT:  Mr Amos Tarkpor Sonkarlay

CASE NUMBER:  1906311

DIBP REFERENCE(S):  BCC2018/4012433

MEMBER:Steven Griffiths

DATE:5 January 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.221 of Schedule 2 to the Regulations

Statement made on 5 January 2021 at 4.18pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 – genuine relationship – applicant living in South Korea – joint purchase of property in Liberia – sponsor lived with applicant in South Korea for 31 days – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65

Migration Regulations 1994, Schedule 2, cls 300.21, 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 Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Mr. Amos Tarpor Sonkarlay, applied for the visa on 29 June 2018. 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 (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 14 February 2019 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the parties genuinely intended to live together as spouses.

4. The parties were assisted by their registered migration agent, Ms. Kristiana Ducaj, of Aus Migration Consultancy.

5. The sponsor appeared before the Tribunal on 2 December 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the applicant and the hearing was conducted with the assistance of an interpreter in the Gio and English languages. It was necessary to adjourn the hearing without taking all evidence due to time restraints with the interpreter.

6. The parties re-appeared before the Tribunal on 5 January 2021 to give evidence, respond to questions and present arguments. The hearing was conducted with the assistance of an interpreter in the Gio and English languages.

7. The registered migration agent took part in the two hearings.

8. The Tribunal exercised its discretion to hold the two hearings by Microsoft Teams Video as the hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearings by Microsoft Teams Video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearings were not to be conducted by Microsoft Teams Video. No concerns were raised by the parties on holding Microsoft Teams Video hearings and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the visa applicant and sponsor genuinely intend to live together as spouses, as defined in s.5F of the Act.

    BACKGROUND OF THE EVIDENCE

11. Mr. Sonkarlay was born in Liberia in 1975. His parents, born 1944 & 1964, and 3 sisters and a brother, born 1988, 1992, 1996 & 2000 all live in Liberia. He has 2 sons and 2 daughters, born 2004, 2006 & 2009. He has lived in South Korea since April 2017.

12. Ms. Gbientor was born in Liberia in 1980. Her mother is deceased, with her father living in the United States of America and her siblings in Liberia. She arrived in Australia on 27/4/05 on a Humanitarian Visa and became in Australian citizen by grant 25 January 2008. She has previously sought to sponsor a partner in 2009 to who she was engaged but did not marry, as the visa application was refused due to his health issues.

    INFORMATION TO THE TRIBUNAL

13. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Migration Agent submission, 1/5/19, seeking Priority Case allocation

    Migration Agent Submission, 24/11/20

    Photos from South Korea of the applicant with containers loaded with car parts, tyres and mattresses, and timber planks

    Document from Liberia of registration of a business of applicant and 2 relatives with same surname

    Sponsor Australian citizenship, 25/1/08

    Copy of transfer of money to applicant from Mr. Gardea Domino Snyder of $ 20,000 Australian on 15/6/20 for purchase of 2 cars

    Details of money transfer by Mr. Snyder to applicant and cash to sponsor.

    Money transfer from applicant to sponsor, 21/6/18, for $ 2,000 USD

    Money transfer from applicant to relative in Liberia for applicant children on 11/5/18 of $100 USD

    Money transfer from applicant to Sister in Liberia for applicant children on 30/10/17 of $600 USD

    Money transfer from applicant to brother in Liberia for applicant children on 8/8/17 of $150 USD

    44 photos of the parties together in South Korea in 2018

    Money Transfer from applicant to sponsor on 14/3/19 for $ 1275 USD, to assist with costs of Tribunal Review application fees

    Details of education enrolment, results and school fee payments of children of applicant.

    Details of monthly contributions by applicant to children in Liberia for 2019 & 2020

    Facebook Messenger between the parties from 3 July 2017 to 8 December 2020

    Does the visa applicant intend to marry an eligible person?

14. Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen, with the Tribunal accepting the documented evidence of the sponsor becoming an Australian citizen by grant on 25 January 2008.

15. The Tribunal accepts the documented and oral evidence of the parties that they were engaged on 27 May 2018 and had scheduled to marry in Australia on 22 June 2019 on the basis of their belief the applicant would have received a visa allowing him to be in Australia.  

16. Accordingly, the requirements of cl.300.211 are met.

    Have the applicants met in person and are they known to each other personally?

17. Clause 300.214 requires that the parties have met in person since each of them turned 18 and that they are known to each other personally. 

18. The Tribunal accepts the documented and oral evidence of the parties that the applicant was born in 1972 and the sponsor in 1980.

19. The Tribunal accepts the documented, photographic and oral evidence of the parties that they first met in 1995 when both lived in the Ivory Coast, until 2004 when the sponsor left to come to Australia, and then reconnected in April 2017, with the parties living together in South Korea from 4/5/18 to 2/6/18.

20. Therefore, at the time of application, the requirements of cl.300.214 were met.

    Do the parties genuinely intend to live together?

21. 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 r.1.15A(3) for spousal relationships: r.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.

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (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 expense

22. The Tribunal determines from the documented and oral evidence of the parties, confirmed independently, that at the time of the visa application the parties did not have joint ownership of real estate or other major assets.

23. The Tribunal accepts the oral evidence of the parties that at the time of decision they have recently jointly purchased 2 allotments in Liberia, on which 3 homes are located, which they intend to use for homes for relatives.

24. The Tribunal determines from the documented and oral evidence of the parties, confirmed independently, that at the time of the visa application and this decision, the parties did not and do not have any joint liabilities.  

25. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, none of the parties had or has a legal obligation with regard to the other.

26. The Tribunal accepts the documented and oral evidence of the parties that the sponsor is foster carer of 4 children.

27. The Tribunal accepts the oral evidence of the parties that the applicant has been a resident of South Korea since April 2017 on a humanitarian visa, while not being permitted to work since the visa expired. The Tribunal accepts that the applicant has continued to operate the export business between South Korea and Liberia he established.    

28. The Tribunal accepts the documented and oral evidence, confirmed independently by the parties, of the finances of the parties being independent as they live in different countries, with money transfers by the applicant to the sponsor and to Liberia for funds to support the children of the deceased sister of the sponsor and the children of the applicant.

29. The Tribunal accepts the documented and oral evidence of the parties that some sales of items the applicant has exported from South Korea to Liberia have resulted in the payment of funds by the items purchasers direct to the sponsor, with these funds used by the sponsor for personal items and day-to-day household costs and to assist with the costs of the visa application and review costs.

30. The Tribunal determines these money transfers to represent, at the time of the application and this decision, the pooling of financial resources for major financial commitments and the sharing of day-today household expenses.

    Nature of the household aspects that must be considered include:-

    (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

31. The Tribunal accepts the documented and oral evidence of the parties of the applicant having four children, born between 2004 and 2009, with all living in Liberia with their mothers.  

32. The Tribunal accepts the documented and oral evidence of the parties of the sponsor not having any of her own children, while as a couple they are desperate to have their own children and the sponsor, due to her age, has already sought the assistance of assisted reproduction medical providers.  

33. The Tribunal accepts the oral evidence of the parties of the cultural importance to them of women having children, and with the sponsor being 40 years old, they are determined to do all they can to ensure that children come from their marriage.

34. The Tribunal accepts the documented and oral evidence of the parties that the applicant lives in shared accommodation in South Korea, with the sponsor renting a home in Australia and sharing it with 4 foster children and an adult friend.

35. The Tribunal accepts the documented and oral evidence of the parties that the sponsor is extremely close to the 3 children of her deceased sister, and continues to support the children, with the mother of the applicant taking on the care responsibilities of one of these children in 2019.

36. The Tribunal accepts the documented, photographic and oral evidence of the parties that the sponsor travelled to South Korea to be with the applicant from 4/5/18 to 2/6/18 and they lived together, sharing household responsibilities for approximately 31 days.   

37. The Tribunal accepts that the parties live in different countries and do not have an established joint household and places little weight on this area.

    Social aspects of the relationship that must be considered include:-

    (i)whether the persons represent themselves to other people as intending to marry; 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

38. The Tribunal accepts the photographic, documented and oral evidence and determines at the time of application and this decision that the parties were became engaged on 27 May 2018 while the sponsor was in South Korea with the applicant, with friends present, and represent themselves to other people at all times as being engages and seeking to marry in Australia as soon as possible.  

39. The Tribunal accepts the documented and oral evidence of the parties that they had intended to marry on 22 June 2019 if the applicant had been given a visa to come to Australia.  

40. The Tribunal accepts the oral evidence of the parties that the opinion of family and friends, at the time of the visa application and this decision, that they are supportive of the relationship and marriage.

41. The Tribunal accepts the photographic, documented and oral evidence of the parties on the social activities undertaken while together in South Korea in 2018.

42. The Tribunal accepts that the parties live in different countries and do not have an opportunity plan and undertaken joint social activities and places little weight on this area.

    Nature of the commitment to each other that must be considered include:-

    (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.

43. The Tribunal accepts the documented, photographic and oral evidence of the parties first meeting in 1995 while living in Ivory Coast and being friends until the sponsor left in 2005 to live in Australia, and then reconnected in 2017 via social media, with a relationship developing resulting in the sponsor travelling to South Korea in 2018 to spend a month with the applicant to determine her feelings, with the parties becoming engaged on 27 May 2018.

44. The Tribunal accepts the documented and oral evidence of the parties that they lived together in South Korea from 4 May to 2 June 2018.

45. The Tribunal accepts the documented and oral evidence of the parties being in contact multiple times per day, evidenced by the provided details of Facebook Messenger contact between July 2017 and December 2020.

46. The Tribunal accepts the photographic, documented and oral evidence of the parties on the issues of their lives together and determines, at the time of the visa application and this decision, that a high level of companionship and emotional support is provided by the parties to each other.

47. The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, they have had and continue to have an ongoing commitment to each other and see the relationship and future marriage as being long-term.

48. On the basis of the above the Tribunal is satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore cl.300.216 is met.

    Do the parties continue to meet time of application requirements?

49. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. That is, that visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses. The Tribunal has considered all the documented and oral evidence of the parties and determines that cl.300.221 is met.

50. 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 300 visa.

    DECISION

51. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl.300.221 of Schedule 2 to the Regulations

    Steven Griffiths
    Member