Ghiwet (Migration)

[2022] AATA 1654

Ghiwet (Migration) [2022] AATA 1654 (10 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Firewen Ghiwet

VISA APPLICANT:  Mr Ghebrehiwet Teshale Ghebrehiwet

CASE NUMBER:  1934440

DIBP REFERENCE(S):  BCC2018/4859007

MEMBER:Justin Meyer

DATE:10 March 2022

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

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 10 March 2022 at 4:53pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act – lesser level of face-to-face contact comes about because of the parties living in separate countries – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, 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 3 December 2019 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 3 November 2018 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211because having considered that there was insufficient evidence to support the elements under r 1.15A the visa applicant was not the spouse of the review applicant (sponsor). Therefore cl 309.221 was not met.

4. The review applicant appeared before the Tribunal on 1 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ghebremedhin Atsebaha, who is the review applicant's (sponsor’s) friend.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether there is sufficient evidence of a genuine and continuing spousal relationship.  

   Whether the parties are in a spouse or de facto relationship

7. 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.

8. ‘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?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. There is written and oral evidence of the parties having married on 5 February 2018 including a marriage certificate with certified translation from Ethiopia. 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

10. I find that there are sufficient joint financial activities that support a genuine spousal relationship. The review applicant and the visa applicant have resided away from one another for a considerable period and had only one limited opportunity to be together in Ethiopia (this being the visa applicant’s country of residence) since the establishment of their relationship in 2017. She spent four months in Ethiopia from 2017 to 2018 and the parties lived together after their marriage for two months.

11. Thus the opportunity to arrange joint ownership of assets, joint liabilities, pooled financial resources, mutual financial legal obligations owed to the other parties, and sharing of day-to-day household expenses is limited. Nonetheless there is evidence of limited but clear joint financial activities taking place.

12. The applicant and sponsor are both low-income earners. They have not the means or opportunity for joint ownership of real estate or other major assets or any joint liabilities.

13. The applicant has stated in his application form that he and the sponsor have separate bank accounts but they intend to have a joint bank account and share their income when the applicant migrates to Australia.

14. The visa applicant stated at his interview with the Department that the parties do not send each other money. The review applicant (sponsor) said that despite having a low-income job as a cleaner she sends her husband money. This appears to have occurred subsequent to his interview with the department.

15. The parties reside in different countries and do not currently have the opportunity to live together on a permanent basis and share financial responsibilities.

16. Therefore the factor is given limited weight.

    Nature of the household

17. I contemplate this factor and include in my consideration any joint responsibility for care and support of children, parties' living arrangements, and any sharing of housework.

18. Again, I note that the review applicant (sponsor) and the visa applicant have resided away from one another for a long period after the time of their wedding and have had only limited opportunities to be together. Thus the opportunity on this score is limited. Nonetheless there has been a level of cohabitation over a period of two months with family and this has taken place in the context of what was in effect and arranged marriage, with tasks done for one another. The visa applicant cleaned the house according to the review applicant’s (sponsor’s) evidence. She would otherwise tell him to rest after he came home from work.   

19. They have not cared for children together.

20. The parties reside in different countries and do not currently have the opportunity to live together on a permanent basis and share a household permanently.

21. Therefore the factor is given limited weight.

    Social Aspects

22. The parties appear recognised by others. Footage of the parties’ wedding with guests present was submitted to the Tribunal. I accept from clear evidence that there were approximately 50 people attending and it took place at the sponsor’s house. She acknowledged that a priest had officiated.

23. I note that two witness statements were made verifying social recognition from persons who know the parties, as noted in the decision record.

24. From the review applicant’s (sponsor’s) evidence I note that the parties’ families knew of each other and facilitated the marriage while the review applicant (sponsor) lived in Australia. She grew up in Ethiopia and distantly knew her now husband. The review applicant (sponsor) met her husband’s siblings and could name them. She knew her husband’s mother had died but his father was alive. The father attended the wedding

25. The parties resided at an uncle’s address while in Ethiopia.

26. There are declarations submitted in evidence of their relationship.

27. Evidence was given in the hearing by Mr Ghebremedhin Atsebaha, a friend of the review applicant (sponsor), who helped with the visa application. I asked if the witness had ever spoken with the visa applicant. He said this had occurred many times. He knew the review applicant (sponsor) via her elder brother in Australia. He confirmed the marriage arrangements of the parties.  He said it was a typical and traditional Ethiopian wedding ceremony. This oral evidence was consistent and I consider Mr Atsebaha to be a reliable witness.

28. In all, there is considerable positive weight given to the social aspect.

    Nature of commitment

29. The review applicant (sponsor) gave evidence that the parties were introduced through family, meeting in late 2017, and marrying while the applicant stayed in Ethiopia.

30. The review applicant (sponsor) gave a consistent and straightforward account of the relationship. She is a shyer person and I accept that the visa applicant is similar. Despite being in their thirties they did not have past marriages or boyfriends or girlfriends to speak of.

31. The review applicant (sponsor) knew that her husband’s job was in animal health.

32. Unfortunately review applicant (sponsor) could not reach the visa applicant on the telephone or internet. She has not been able to speak to him because of the Tigray conflict in Ethiopia. All contact has been impossible for the last nine months. The Tribunal’s numerous attempts to contact were unsuccessful. The witness Mr Ghebremedhin Atsebaha confirmed that entire networks were down in Tigray because of the conflict. DFAT reported in 2020:

    [3.14]   The Government of Tigray is engaged in a number of border disputes, predominantly with the Government of Amhara state. Ethnic Tigrayans have clashed with Ethnic Amharans in the Welkait and Raya woredas, with both sides claiming foul play by the other. Conflict has persisted in rural areas, and Tigrayans have also been targets for violence in eastern Amhara State (approximately 37,000 Tigrayans were living in Amhara State at the time of the 2007 census).  [1]

    [1] Country Information Report Ethiopia 12 August 2020

33. News reports suggested that telephone and internet have been shut down by the central government:

    "Ethiopia shuts down telephone, internet services in Tigray" , 9 Nov 2020

    The Ethiopian government on Wednesday began restricting telephone and internet services to the troubled Tigray region, hours after Prime Minister Abiy Ahmed ordered a military response to an ambush on the military. Information access rights group, Access Now, indicated the region had been closed to the world after Addis Ababa imposed a six-month State of Emergency, accusing Tigray of threatening the sovereignty of Ethiopia. “The government of Ethiopia has again shut down the internet,” Access Now said. “Mobile network, fixed-line internet and landline telephony have been cut in Tigray, as PM declares a state of emergency and orders military intervention against Tigray People’s Liberation Front.” [2]

    [2] >

    The Tribunal accepts that contact has been impossible lately for the applicant. At the Tribunal’s request records of communication were forwarded to the Tribunal showing extensive communication between the parties prior to the communication shutdown.

34. Regular contact has been maintained in the past and this was evidenced by extensive phone and messaging records.

35. Ongoing emotional support was spoken of and confirmed by third parties in documentary form.

36. The parties appear to contact each other while apart on daily basis and discuss their day to day matters, when possible, based on records submitted and oral evidence.

37. In respect of the persons' commitment to each other, the duration of the relationship spans some five years. The relationship is seen as long‑term. A good deal of degree of companionship and emotional support is evident from records of and witness accounts of constant communication over a period of years to the present.

38. I find that this is a committed relationship which is treated as long-term, and that the lesser level of face-to-face contact comes about because of the parties living in separate countries.

39. The review applicant (sponsor) gave evidence gave straightforward evidence about plans for the future, including having children. She displayed a good knowledge of her husband’s personality and habits indicating a commitment to spousal relationship.

40. Having had regard to the financial aspects, the nature of the household, the social aspects and the nature of the persons' commitment to each other, I consider these findings together demonstrate that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, and the relationship is genuine and continuing. I am further satisfied that the parties do not live separately and apart on a permanent basis. They therefore meet the requirements of s.5F for a spousal relationship.

41. Given these findings I am satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship.

42. Therefore the visa applicant meets cl.309.211 and cl.309.221.

43. 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

44. 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

    ·cl.309.221 of Schedule 2 to the Regulations

    Justin Meyer
    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).