GEBREMESKEL (Migration)

[2023] AATA 1159

GEBREMESKEL (Migration) [2023] AATA 1159 (24 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hail Michael GEBREMESKEL

VISA APPLICANT:  Miss Webrest Semahagn Biyazen

CASE NUMBER:  1901877

DIBP REFERENCE(S):  BCC2017/3731483 OSF2017/023565

MEMBER:M. Edgoose

DATE:24 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 24 April 2023 at 4:20pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – not satisfied the couple had a mutual commitment to a shared life as a married couple to the exclusion of all others – no evidence that the parties pool financial resources – lack of physical evidence – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, 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 13 December 2018 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 10 October 2017 on the basis of her relationship with her 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 and cl 309.221.

4. The review applicant appeared before the Tribunal on 24 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Nigisti Mulholland the sister of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

6. 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.

7. ‘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?

8. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The review applicant submitted to the Tribunal a copy of an Ethiopian Orthodox Tewahedo Church Marriage Certificate dated 21 July 2016. 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?

9. The Tribunal has given regard to the limited oral evidence provided at hearing. The Tribunal notes that the only physical evidence submitted since the review applicant lodged his application on 28 January 2019 to have the delegate’s decision reviewed was on 12 December 2022. The review applicant through his then representative, Mr Ratry Chanty, submitted a translated lettered from the review applicant and visa applicant, a copy of the review applicant’s passport and several photos of the couple. The letter mentioned that the review applicant married the visa applicant on 21 July 2016 and that they lived separately when he returned to Melbourne until the visa application was refused by the delegate. The review applicant claims that he then returned to Ethiopia on 12 October 2019 to be with his wife. The Tribunal accepts that the review applicant departed Australia on 11 October 2019 and did not return until 20 April 2023. The issue for the Tribunal is that during this time the only evidence he submitted to the Tribunal was made on 12 December 2022.

10. Just prior to the hearing the review applicant submitted to the Tribunal copies of his airline ticket which departed on 19 April 2023 from Addis Ababa, Ethiopia and arrived in Melbourne, Australia on 20 April 2023. No further physical evidence was submitted to the Tribunal regarding this review.   

11. Therefore, the Tribunal has reached its decision based on the limited oral evidence provided at hearing according to the requirements of r.1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.15A(2).

    Financial aspects of the relationship

12. Regarding the financial aspects of the relationship the review applicant and visa applicant informed the Tribunal that there is no joint ownership of assets; no joint liabilities; no pooling of financial resources; and no legal obligations owed to the other party. The visa applicant claimed that regarding the sharing of day-to-day household expenses they shared their money in Ethiopia to pay for food, electricity, water, clothes, cosmetics, and shoes. The issue for the Tribunal regarding this claim by the visa applicant is that there is no physical evidence to support this claim.

13. The review applicant informed the Tribunal that the visa applicant worked as a teacher and during his time in Ethiopia he ran a small bakery that was owned by the visa applicant.  The issue for the Tribunal regarding this claim is that there is no physical evidence to support these claims. The review applicant further added that they had their own individual bank accounts in Ethiopia, but no evidence of these accounts was submitted to the Tribunal. The review applicant further mentioned that the visa applicant had her own superannuation in Ethiopia and that he does not have any superannuation. When asked by the Tribunal the visa applicant stated that she does not have any superannuation as she employed as a teacher and receives an income. The Tribunal accepts that the review applicant may have misunderstood or misinterpreted what he was being asked.

14. The review applicant and visa applicant has not provided the Tribunal with any physical evidence regarding the financial aspects of the relationship. Given the review applicants and visa applicants limited oral evidence at hearing and that they claimed to have lived together for the past 3.5 years the Tribunal places little weight on the financial aspects of the relationship.

    Nature of the household

15. The review applicant informed the Tribunal that they have had no children together. Both the review applicant and visa applicant claimed at hearing that they have been trying to have a child. The witness informed the Tribunal that the visa applicant had had a miscarriage in 2022. Given that the review applicant and visa applicant made no mention of the claimed miscarriage and no physical evidence was submitted the Tribunal places little weight on this claim.

16. The review applicant informed the Tribunal that since arriving back in Australia on 20 April 2023, 4 days prior to the hearing, he had been living with his sister at her apartment. The visa applicant informed the Tribunal that she currently lives at the home of the review applicant’s parents in Ethiopia. The review applicant claimed that when he was in Ethiopia, he shared all housework activities with the visa applicant. The visa applicant claimed she prepared food, cleaned the house and baked bread. The Tribunal notes that when the couple claimed to have been together, they were living in the review applicant’s parents house. The issue for the Tribunal is that there is no physical evidence is before the Tribunal to support these claims. For these reasons the Tribunal places minimal weight on the nature of the household.  

    Social aspects of the relationship

17. The review applicant informed the Tribunal that people know that we are husband and wife. The visa applicant stated that people know we are married.  The review applicant further mentioned that the opinion of friends and acquaintances about the nature of the relationship is that they accept it. He further added that they have been married 6 years and that it is a true marriage. The visa applicant mentioned that they understand me, that she has a lovely life and that she is a good example to others.

18. The Tribunal acknowledges that on 12 December 2022 several photographs of the couple were submitted. These photos were just of themselves and no third parties. The Tribunal notes that no letters or statutory declarations of support were submitted to the Tribunal.

19. The review applicant claims that during his time in Ethiopia they planned and undertook several joint social activities. These joint social activities included shopping together, going to church together and visiting places and friends together. The visa applicant further mentioned that during the corona virus they were not able to move between towns and that they mainly stayed at home. Further to this the political situation in Ethiopia is currently not good and that they were not living in a good area. Therefore, it was not easy to move around. Although this may have been the case the issue for the Tribunal is the lack of physical evidence to support their claims and for these reasons the Tribunal places little weight on the overall social aspects of the relationship.

    Nature of persons' commitment to each other

20. The review applicant claims to have first met the visa applicant in person on 14 August 2014 at a church in Ethiopia. They maintained contact and several years later the review applicant married the visa applicant on 21 July 2016 in Ethiopia. The review applicant claims that after the marriage they lived together for approximately 6 months before returning to Australia. The review applicant then travelled to Ethiopia on several occasions after the visa application was lodged. After the visa application was refused on 13 December 2018 the review applicant claimed at hearing that he relocated to be with his wife in Ethiopia on 11 October 2019. He subsequently did not return to Australia until 20 April 2023, just 4 days prior to the hearing.

21. The review applicant claimed at hearing that according to their religion they drew companionship and emotional support from each other from all aspects. The visa applicant stated that she loves the review applicant, that they support each other morally and that in each-others company they are a good husband and wife. Both the review applicant and visa applicant informed the Tribunal that they see the relationship as a long term one.

22. The review applicants’ final comment to the Tribunal was that he wanted the visa applicant to be with him in Australia and that if she is not successful, he will not abandon her. He stated that he will travel between Australia and Ethiopia on a regular basis. The visa applicant informed the Tribunal that if she was not successful, she wanted the review applicant to be with her in Ethiopia.

23. Having considered the oral evidence provided at hearing and overall, the lack of physical evidence the Tribunal places minimal weight on the nature of the persons’ commitment to each.

    Witness - Ms Nigisti Mulholland

24. At hearing the review applicant’s sister provided oral evidence. She stated that she knows that the review and visa applicant are in love and that the review applicant, her brother, abandoned his life in October 2019 to be with the visa applicant in Ethiopia. She further stated that he took his money across to Ethiopia to be with the visa applicant for the past 3.5 years. The Tribunal found the witness to be a credible witness however due to a lack of physical evidence to support her claims the Tribunal placed little weight on her overall oral evidence.

25. The Tribunal informed the review applicant at hearing that he has had since 13 December 2018 when his initial visa application was refused to lodge the relevant supporting evidence to the Tribunal, and he has not done so. For these reasons the Tribunal is not satisfied that the review applicant meets r 1.15A(3).   

26. Based on the evidence, the Tribunal is satisfied the couple were married to each other under a marriage that is valid for the purposes of the Act. However, based on the limited oral evidence at hearing and the lack of supporting physical evidence as mentioned on several occasions throughout this decision the Tribunal is not satisfied the couple had a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship between them was genuine and continuing and that they do not live separately and apart on a permanent basis.

27. Based on the above the Tribunal is not 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.

28. Therefore, the visa applicant does not meet cl.309.211 and cl.309.221.

29. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

30. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    M Edgoose
    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).