Hussen (Migration)

[2020] AATA 477

Hussen (Migration) [2020] AATA 477 (13 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rukiya Kiyar Hussen

VISA APPLICANT:  Mr Kamil Hussein Awel

CASE NUMBER:  1801621

DIBP REFERENCE(S):  BCC2016/3207618

MEMBER:David Crawshay

DATE:13 February 2020

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; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 13 February 2020 at 5:51pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – lived together during periods where the review applicant was in Ethiopia – well-attended and elaborate wedding ceremony – joint social activities – parties’ communications during periods where they were physically separated from each other – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), 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 15 January 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 is Mr Kamil Hussein Awel, 44, who is a citizen of Ethiopia.

3. The visa applicant applied for the visa on 26 September 2016 on the basis of his relationship with his sponsor, Ms Rukiya Kiyar Hussen, 29, who is the review applicant. Ms Hussen is an Australian citizen. 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).

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) because the visa applicant did not meet the definition of spouse under s.5F of the Act. Specifically, the delegate found that there was insufficient evidence to demonstrate that the parties maintained contact with each other while apart. The delegate also found that there was insufficient evidence that the parties undertook joint social activities outside of their wedding.

5. The review applicant appeared before the Tribunal on 13 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone, as well as from two witnesses, Mr Gadisa Ibrahim and Ms Weyneshet Zewdi. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.

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

   BACKGROUND

7. The visa applicant was born in Ethiopia in 1976. He has claimed no previous married or de facto relationships.

8. The review applicant was born in Ethiopia in 1990. She was married in 2009 to a man who sponsored her to come to Australia under a Partner (Provisional) visa (UF-309). She arrived in May 2010. In May 2012, she was granted a Partner (Permanent) visa (BC-100). The couple divorced in August 2014. The review applicant was granted Australian citizenship in March 2015.

9. The parties claim to have met at the birthday party of a relative in Addis Ababa in August 2013, during a three-month trip to Ethiopia by the review applicant. The birthday party was held for the review applicant’s cousin, Kadija. The visa applicant was there as he was friends of her older brother, Jamal. The parties claim to have spoken to each other on that occasion and the review applicant gave the visa applicant her contact details. The parties claim to have met each other twice more during the review applicant’s trip – once was when the visa applicant drove her and her cousin to another party, the other time was when he drove her to do some shopping. The review applicant returned to Australia in October 2013.

10. The parties claim to have communicated with each other from that point via mobile telephone calls, Facebook Messenger, Viber and IMO. They claim that their relationship developed to a point where, in October 2015, the visa applicant proposed to the review applicant over the phone, and she said yes. The visa applicant then reportedly sent elders and family members to seek the permission of the review applicant’s family.

11. The review applicant claims to have travelled to Ethiopia in December 2015. The parties claim to have married in January 2016 at a ceremony held at the review applicant’s family home, and to have spent a night at a hotel in Addis Ababa. They then claim to have begun living thereafter in the visa applicant’s family home in Addis Ababa. It was during this trip that the review applicant claims to have fallen pregnant with a child. This child, called Nooh, was born in October 2016.

12. On 26 September 2016, the visa application was lodged.

13. Two further trips were reportedly made by the review applicant to visit the visa applicant – a two-month trip from March to May of 2018, and a one-month trip in February and March 2019. During the 2018 trip, the parties claim to have taken a holiday in the nearby resort town of Bishoftu. During the 2019 trip, the parties claim to have attended the wedding of the review applicant’s brother Ahmednur.

14. At the times when they were physically apart, the parties claim to have maintained regular contact via social media applications such as Viber.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the visa applicant is the spouse of the review applicant under s.5F of the Act.

    Whether the parties are in a spouse or de facto relationship

16. Clauses 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.

17. ‘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 parties’ 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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

18. The parties submitted a certificate for a marriage that took place on 10 January 2016. The certificate was issued by a judge of the Federal First Instance Sharia Court on 15 February 2016.

19. The Tribunal notes that Article 31(2) of Proclamation No. 760/2012 places an obligation on a couple to present evidence of a religious marriage to an officer of civil status for registration. Article 18(1) of that same Proclamation allows 30 days for such registration. However, the Tribunal further notes that the agency in charge of registration was not established until August 2016 – that is, after the parties’ marriage.[1] The Tribunal finds that the parties did all that was necessary at that time to ensure that their marriage was recognised by the authorities.

    [1] Danish National ID Centre, ‘Ethiopian civil certificates issued by the Vital Events Registration Agency’ (2 October 2018), 2.

20. 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?

21. It is worth noting that the Tribunal has received a substantial amount of evidence from the parties that was not in front of the delegate at the time they made their decision, especially in the area of communications. The Tribunal will be forwarding this evidence on to the Department for their reference.

    Financial aspects of the relationship

22. The Tribunal has considered any joint ownership of real estate or other assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party, and any sharing of day-to-day household expenses in assessing the financial aspects of the relationship.

23. The parties told the Tribunal that they have no joint ownership of real estate or other assets, and no joint liabilities. They owe each other no legal obligations. The Tribunal accepts this evidence.

24. The review applicant told the Tribunal that they opened a joint bank account in April 2018, which they use for expenses when on holidays and also for the purposes of saving for a house in Addis Ababa. The review applicant handed up a number of receipts for money transfers made to the visa applicant and also to the parties’ joint account for the years from 2016 to 2019. This evidence is accepted by the Tribunal.

25. Lastly, the review applicant said that the visa applicant mainly takes care of expenses when the parties are together in Ethiopia. The Tribunal accepts this evidence.

26. Taken in its totality, the evidence from the parties is that they have sought to integrate their financial resources to some extent, albeit limited. The Tribunal gives this evidence some weight.

    Nature of the household

27. The Tribunal has considered any joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of housework in assessing the nature of the household.

28. The parties claim joint responsibility for a child, Nooh, who was born in October 2016. Based on the evidence in front of it, the Tribunal accepts that the parties have joint responsibility for his care and support. More detail concerning the relationship between the parties and Nooh is found below.

29. In relation to living arrangements, the parties have told the Tribunal that they lived at their family homes in Addis Ababa before their wedding in January 2016. They claim to have spent a night at a hotel on the night of their wedding and to have begun living at the visa applicant’s family home. They claim to have lived here on the review applicant’s two subsequent trips in 2018 and 2019. Based on a high level of consistency between the parties’ testimony, the Tribunal finds that they lived as claimed during periods where the review applicant was in Ethiopia. This evidence is accorded significant weight by the Tribunal when considering the nature of the parties’ household.

30. The parties claim to have shared housework during the times that they were living together in Ethiopia. The Tribunal accepts this evidence and gives it some weight.

    Social aspects of the relationship

31. The Tribunal has considered whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake joint social activities in assessing the social aspects of the relationship.

32. The parties claim to have married each other in a ceremony on 10 January 2016. Their wedding was held in the garden of the review applicant’s family compound in Addis Ababa. The parties both told the Tribunal that some 400 people were in attendance, including all immediate family members of both parties, as well as aunts, uncles, cousins and friends. The guests were seated in three marquees set up for the occasion. Some photographs were submitted of the event, and the Tribunal also had the benefit of viewing a 40-minute video at hearing. These pieces of evidence amply demonstrate to the Tribunal that the wedding was well-attended and that it was an elaborate affair. The Tribunal accepts this evidence and gives it significant weight in its consideration of whether the parties represent themselves to other people as being married to each other.

33. The Tribunal also finds that the parties are accepted by their friends and acquaintances as being married to each other. Apart from evidence from their wedding, which shows the parties being embraced by their respective families, the Tribunal was also able to interview two friends of the review applicant. Mr Ibrahim told the Tribunal that he had been a friend of the review applicant for eight years through the Ethiopian community. He said that he knew about the relationship from the time that the review applicant returned from the wedding. He said that he had visited the visa applicant twice – once in 2018 and once in 2019 – and that he had brought gifts with him on both occasions. The visa applicant confirmed to the Tribunal that he had met Mr Ibrahim in Ethiopia. Ms Zewdi told the Tribunal that she had been the review applicant’s housemate from 2014 until the review applicant moved out in late-2016 after giving birth to her son. Ms Zewdi told the Tribunal that she visited Ethiopia in April 2018 when the parties were both over there. She said that she was able to witness the couple first-hand. Both witnesses expressed their desire to see the parties reunited in Australia. This evidence is accepted by the Tribunal and given significant weight.

34. The Tribunal turns lastly to the basis on which the parties plan and undertake joint social activities, which it notes was an issue for the delegate at first instance. The parties told the Tribunal that they have attended many family occasions together, including the wedding of the review applicant’s brother in 2019. Photographs were submitted that showed the parties present to celebrate that occasion. They both told the Tribunal that they went on holiday to Lake Kiroftu in April 2018 with their son, and a receipt from a hotel in Bishoftu was submitted in support of this claim. Further photographs submitted by the parties show them sitting down for meals and drinks with family members and friends. The Tribunal accepts this evidence and finds that the parties have planned and undertaken a number of joint social activities. This evidence is given moderate weight by the Tribunal.

    Nature of parties' commitment to each other

35. The Tribunal has considered the duration of the parties’ relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term in assessing the nature of the parties’ commitment to each other.

36. The parties claim to have met in August 2013 at the birthday party of a cousin of the review applicant. They claim to have seen each other twice more during that visit, and to have kept in touch after the review applicant returned to Australia in October 2013. The parties claim to have developed their relationship to the point where the visa applicant proposed marriage to the review applicant in October 2015. This date was given as the date the parties committed to a shared life together to the exclusion of all others. The parties were then married in January 2016. The visa application was lodged in September 2016. A month later in October 2016, a son was born to the review applicant.

37. There is little, if any, evidence to substantiate the parties’ claims in relation to the inception and development of their relationship. While the Tribunal considers that the parties did marry in January 2016 – so much is acknowledged by the certificate of marriage – no evidence was presented in relation to the review applicant’s visit to Ethiopia in 2013 or the parties’ communications afterwards. However, the parties were substantially consistent in their testimony about those events, and this suggests to the Tribunal that they probably met each other as claimed, and that they developed their relationship to the point where they got married in January 2016. The Tribunal accepts that the parties had been in a committed relationship since October 2015 (when the visa applicant proposed marriage) and that the parties had been in a relationship for just under a year at the time of application. This evidence of the duration of the relationship is given moderate weight by the Tribunal.

38. During the time from when the parties were married in January 2016 until today, the Tribunal has found that they had been living together during periods when the review applicant was in Ethiopia. This evidence of the length of time the parties have lived together is given some weight.

39. The Tribunal now deals with the degree of companionship and emotional support the parties draw from each other.

40. An issue for the delegate at first instance was the absence of evidence demonstrating that the parties were communicating with each other for the periods where they were apart from each other. The parties have since submitted records for periods from February to September 2016 and from February 2017 to September 2019. They are extensive to say the least, and they show the parties in regular and constant communication with each other. They demonstrate to the Tribunal that the parties were seeking to sustain their relationship during periods where they were physically separated from each other. The Tribunal accepts this evidence and gives it significant weight in its consideration of whether the parties draw companionship and emotional support from each other.

41. When asked to describe what she likes about her husband, the review applicant said that he is patient man who is a good husband, a good father and a good worker. She said that he offers the family love and care. The visa applicant said that the review applicant has a good heart. He considers her to be honest, straightforward and open, and that the parties can talk openly. He said that she is beautiful.

42. The parties have submitted evidence of a son for which they share joint responsibility. The overwhelming evidence from the parties and from their witnesses is that they are anxious to be reunited, not least for the sake of their son. The visa applicant said he felt sad for the review applicant and also for his son – who was without a father at present. In photographs of the parties, their son appears to occupy a special place. Both parties told the Tribunal that the visa applicant and his son speak almost daily on video calls. The review applicant said that the visa applicant and his son formed a very close bond when they first met each other in 2018, so much so that the review applicant extended their stay in Ethiopia for a month.

43. The Tribunal accepts this evidence. It accepts that the parties have shown a deep level of commitment by having a child and taking an active interest in his upbringing – a significant joint undertaking and a sign to the world at large that the parties consider their relationship to be long-term. For these reasons, this evidence is given the most weight by the Tribunal.

    CONCLUSION

44. 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. The parties’ relationship is genuine and continuing, they have a commitment to a shared life as a married couple to the exclusion of all others, and they do not live separately and apart on a permanent basis.

45. Therefore the visa applicant meets cl.309.211(2) and cl.309.221.

46. 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

1. 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; and

   ·cl.309.221 of Schedule 2 to the Regulations.

   David Crawshay
   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).