Jacobs (Migration)

[2018] AATA 5227

Jacobs (Migration) [2018] AATA 5227 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sandra Leanne JACOBS

VISA APPLICANT:  Mr Nelson Romulado GARCIA

CASE NUMBER:  1620952

DIBP REFERENCE(S):  BCC2015/2089393

MEMBER:Shane Lucas

DATE:7 November 2018

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 07 NOVEMBER 2018 AT 3:33PM

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional) – not a genuine ongoing relationship – evidence provided insufficient to indicate genuine longterm relationship – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5F, 65

Migration Regulations 1994, Schedule 2 cls 309.211(2), 309.221, 309.223, r 1.15A(3

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 17 October 2016 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 a national of the Philippines born on 10 June 1988. He applied for the visa on 7 July 2015 on the basis of his relationship with the 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. Relevant to this matter, the primary criteria include cls.309.211(2), 309.221 and 309.223.

3. The delegate was not satisfied that the parties have a mutual commitment to a shared life as husband and wife to exclusion of all others and that the relationship between the visa applicant and the sponsor is genuine and ongoing. Accordingly, the delegate found that the visa applicant does not meet the definition of spouse at s.5F of the Act.

4. The review applicant seeks review of the delegate’s decision.

5. The review applicant appeared before the Tribunal on 16 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from two additional witnesses, being respectively the sister of the review applicant, and the son of the review applicant.

6. The applicant was represented in relation to the review by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues in the present case are whether at the time of application, the visa applicant was the sponsor’s spouse for the purposes of the Act (cl.309.211); whether at the time of decision, the visa applicant continues to meet the requirements of cl.309.211 (cl.309.221); and whether at the time of decision, the visa applicant continues to be the spouse of the review applicant (cl.309.223).

   Relevant law

9. ‘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 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 the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the parties’ household, and their commitment to each other as set out in r.1.15A(3).

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a spousal relationship. The applicants provided a copy of a Certificate of Marriage issued by the Office of the Civil Registrar, Republic of the Philippines showing the marriage was made on 11 May 2015 at Bugallon in Pangasinan Province. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied on the evidence that 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 other relevant requirements met?

11. 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. The parties provided a Birth Certificate issued by the Victorian Registry of Births, Deaths and Marriages showing that the review applicant was born in Carlton, Victoria on 1 November 1960 and hence, acquired Australian citizenship at birth.

    Are the other requirements for a spousal relationship met?

12. The Tribunal received documentation and oral evidence that was not available to the delegate. This information has been considered in the making of this decision.

    Financial aspects of the relationship

13. The applicants submitted documentation and gave oral evidence regarding the financial aspects of the relationship.

14. The couple stated that they do not maintain a joint bank account and do not claim to have pooled their financial resources to any extent. In a submission made by the applicant’s representative dated 8 October 2018, he states:

    “As they [the visa applicant and sponsor] don’t live in the same country, this is not very relevant. Issues about [the] financial nature of a relationship can be quite subjective, but also relate to the individual circumstances of each relationship.”

15. The Tribunal concurs with the representative’s statement on this point and has closely considered the specific circumstances of the parties in assessing the financial aspects of the relationship. The Tribunal notes that the applicant’s representative describes the review applicant as a person of “modest means”. In oral evidence, the review applicant stated that she has sent money to the applicant on occasion and that she has used her limited financial resources to travel to the Philippines three times (in 2014, 2015 and 2017) to visit the visa applicant. The review applicant stated also that she borrowed some AUD15,000 to pay the visa application fee and associated legal costs in 2015, and that she has withdrawn her personal superannuation funds to assist with her personal living costs.

16. The Tribunal also notes the documentation provided attesting to the visa applicant’s employment as a teacher with the Philippines Department of Education. In a written statement witnessed and dated 11 October 2018, the visa applicant also states that on those occasions when the review applicant has travelled to the Philippines:

    “We shared all expenses living together, utility expenses, food expenses and other expenses we made like travelling together. All people accepted us here regardless of our age difference.”

17. On consideration of the evidence, the Tribunal finds that the couple have not pooled their financial resources. The Tribunal finds some evidence that the couple shared day-to-day expenses on the occasions the review applicant has travelled to the Philippines. The Tribunal finds no evidence that the couple have committed to joint ownership of real estate or other major assets, or that they have assumed any joint liabilities. The Tribunal finds no evidence that either party owes any legal obligation in respect of the other. Given the constraints of residing in separate countries however, the Tribunal accords little weight to consideration of the financial aspects of the relationship in this case.

    Nature of the household

18. The applicants claim that since meeting online through a Facebook dating site known as Are You Interested? in February 2013, the review applicant has travelled to the Philippines on three occasions, being in March-May 2014; in April-June 2015; and in June-July 2017. In his submission dated 8 October 2018, the applicant’s representative states:

    “The fact that they [the visa applicant and sponsor] do not live in the same country makes providing evidence of the ‘Nature of the Household’ almost meaningless.”

19. The Tribunal concurs with the representative’s statement on this point. While the parties provided photographic evidence and written statements attesting to their travels together during the course of the review applicant’s periods in the Philippines, and the review applicant gave oral evidence that the visa applicant is an excellent cook, the couple do not contend that they established a joint household at these times. In oral evidence, the review applicant stated that should the visa applicant be successful in this application, he would reside with her at her rented property in Braybrook, Victoria. The applicant’s representative also states that:

    “Clearly, should [the visa applicant] be granted a visa and travel to Australia to live with his wife, [the visa applicant] and [the review applicant] would then be able to establish a household…”

20. On consideration of the evidence, the Tribunal therefore finds no evidence attesting to the living arrangements of the persons; little evidence of the sharing of responsibility for housework; and no evidence of joint responsibility for the care and support of children. Given the constraints of residing in separate countries however, the Tribunal accords little weight to consideration of the nature of the parties’ household in this case.

    Social aspects of the relationship

21. The parties provided the Tribunal with submissions, oral evidence, statutory declarations, and photographic evidence regarding the social aspects of their relationship. The Tribunal notes that the declarations were provided by the same persons who provided oral evidence at hearing on 16 October 2018, being respectively the sister of the review applicant and the son of the review applicant.

22. In the submission made by the review applicant’s representative dated 8 October 2018, it was stated that “[The review applicant] has lived in her husband’s home for a total of 27 weeks…”, however this calculation is not supported by other documentation or by the oral evidence of the parties. At the commencement of the hearing on 16 October 2018, the review applicant’s representative clarified an error in the submission as regards the time of the parties’ first meeting in person, noting that this occurred in March 2014, and not February 2013 as stated in the submission. As noted above at [18], the oral and documentary evidence provided by the review applicant indicates that she has visited the visa applicant in the Philippines on three occasions, being March-May 2014 (some 7 weeks); April-June 2015 (some 9 weeks); and June-July 2017 (some 4 weeks). Accordingly, the Tribunal concludes that the review applicant has visited the visa applicant in the Philippines on three occasions for some 20 weeks (not four occasions for some 27 weeks, as stated in her representative’s submission) and accepts that the error made by the review applicant’s representative was made in good faith and not with any intention to embellish or exaggerate the period of time the parties have spent together.

23. The photographic evidence provided shows the interactions between the parties during the review applicant’s three visits to the Philippines and portrays the couple alone and/or in the company of others in various social settings including at tourist destinations, at functions (i.e. birthdays) for members of the visa applicant’s family, and at the couple’s wedding in Bugallon on 11 May 2015. The photographic evidence portrays the parties as being in each other’s company; however, it does not demonstrate in and of itself that the couple are in a genuine and ongoing spousal relationship. In this regard, the Tribunal notes also the visa applicant’s written statement dated and witnessed on 11 October 2018, wherein it is stated:

    “[In 2014]… we went to different beaches in Pangasinan specially in Lingayen Beach where we spent much of time together in the afternoon. We also did island hopping together with my sisters and brothers, friends and cousins at the Hundred Islands in Alaminos City, Pangasinan where you can see the scattered islands in the middle of the sea… [in 2015]… after the marriage rite, we brought the witnesses in a restaurant to eat our lunch. At night, some of our friends went over to have a little drink. We made our honeymoon in Baguio City for two nights and two days. My brother [name withheld by the Tribunal] was with us in a separate room.”

24. The Tribunal reasons that the photographic evidence submitted is generic in that it shows the review applicant in the company of the visa applicant and members of his familial and social network enjoying tourist activities that might be commonly undertaken by any person visiting friends or acquaintances in a foreign country. Moreover, the Tribunal reasons that the description of these activities provided by the visa applicant above affirms that these are social activities that might commonly be enjoyed by persons visiting a foreign country and do not constitute evidence of a genuine and continuing spousal relationship between the parties. The Tribunal also notes that seems unusual for a newly-married couple to “honeymoon” in the company of the groom’s brother, and finds that this evidence compounds the assessment of the relationship as not being a genuine and continuing spousal relationship. Accordingly, the Tribunal gives the documentation and photographic evidence provided little weight in determining the social aspects of the relationship. 

25. In oral evidence, the witnesses both stated that the visa applicant has maintained regular contact with the review applicant via Facebook and telephone during the extended periods in which the couple have resided in separate countries. The witnesses also gave evidence that the visa applicant maintained regular contact during the review applicant’s recent serious illness (the review applicant underwent open heart surgery in August 2018), regularly telephoning the sponsor’s sister or son to enquire after her health on those occasions when the review applicant was unable to speak with him directly due to her post-operative condition.

26. The Tribunal acknowledges that the witnesses both regard the parties to be in genuine and continuing spousal relationship; that the witnesses stated that while they have not personally met the visa applicant, they believe him to be “sincere”; and that the witnesses stated respectively that they want the review applicant “to be happy”. The Tribunal notes that neither witness claims to have met the visa applicant or to know him personally; and that neither witness has had occasion to see the couple together in person. The Tribunal therefore reasons that as the witnesses are close family members of the review applicant, they have reason to be supportive of the application under review, notwithstanding their lack of intimate knowledge of the claimed relationship upon which the application is based. Accordingly, the Tribunal gives the witnesses’ oral evidence limited weight in determining the social aspects of the relationship. 

27. On consideration of the evidence, the Tribunal accepts that the couple have represented themselves to the review applicant’s sister and son as being married to each other. The Tribunal finds some evidence indicating that the relationship is genuine and continuing in the opinion of some “others:. However, the Tribunal finds that these opinions are limited to two close members of the review applicant’s family; they are not informed by an intimate knowledge of the relationship; and they are informed by the witnesses’ intent to be supportive of the review applicant. The Tribunal finds limited evidence that the couple plan and undertake joint social activities, excepting their wedding celebration in May 2015 and generic tourist activities undertaken during the review applicant’s visits to the Philippines in 2014, 2015 and 2017.

28. The Tribunal is therefore not satisfied that the social aspects of the relationship attest to a genuine and continuing spousal relationship between the parties.

    Nature of the person’s commitment to each other

29. As stated above at [18], the parties claim to have met online through a Facebook dating site in February 2013. The review applicant has also travelled to the Philippines on three separate occasions, being March-May 2014, April-June 2015, and June-July 2017. In the submission made by the review applicant’s representative dated 8 October 2018, he states:

    “Personal companionship is obviously only possible when a couple are physically in the same location. Despite living 6,000km apart, the fact that they have spent 27 [20 weeks, see discussion at [21] above] weeks together while awaiting the visa decision and then waiting for the AAT hearing is strong evidence of the couple doing everything possible to continue companionships and emotional support.”

30. The Tribunal does not accept this contention, as there may be many forms of communication and contact through which a couple in a genuine and continuing spousal relationship provide each other with companionship and emotional support over and above the shared intent to achieve a migration outcome. The Tribunal’s concern is not so much that the couple have resided in separate countries for the vast majority of the period of the claimed relationship; it is that the parties have provided limited evidence of genuine companionship and genuine emotional support during these periods in which they have lived separately.

31. In oral evidence, the review applicant confirmed that the cost of travelling to the Philippines more frequently was prohibitive for her as a person of “modest means”. The review applicant stated also that she borrowed some AUD15,000 to pay the visa application fee in 2015. The Tribunal acknowledges that distance and cost are factors in this matter. The Tribunal acknowledges also that the review applicant has made a significant financial commitment to meet the application and legal fees associated with the application. However, the Tribunal is not satisfied that the steps taken by the review applicant to meet these costs notwithstanding her limited financial resources constitutes evidence of a genuine and continuing spousal relationship between the parties; rather, the Tribunal finds that these steps constitute evidence of the parties’ intention to achieve a migration outcome for the visa applicant.

32. The Tribunal also notes the oral evidence provided by the parties indicating limited knowledge of their respective relationship histories and individual motivations to commence and maintain their claimed relationship. In response to questions from the Tribunal, the applicants made general, non-specific statements regarding their commitment to the relationship. The review applicant stated that her motivation to marry the visa applicant in May 2015 was “to be together”; however, the review applicant subsequently indicated that she did not proceed to marry until such time as she had borrowed and/or saved enough money to pay the visa application fee, the application being lodged some eight weeks later in July 2015. The visa applicant also provided little detail attesting to the genuine and continuing nature of the relationship. In his written statement dated 11 October 2018, he stated:

    “I love my wife and I wanted to be with her. In the eyes of God and laws bound by our vows, we are legally married. ‘Age is irrelevant if you are in love’”.

33. In oral evidence, the visa applicant reiterated that his intentions toward the review applicant are that of a sincere husband. He stated that he was not seeking a migration outcome in Australia and that the 28 year age difference between the couple is not a concern to him. The Tribunal acknowledges these statements, but reasons that they are generic statements that do not indicate that the parties are in a genuine and continuing spousal relationship. The Tribunal accordingly gives these statements little weight in determining the nature of the persons’ commitment to each other.

1. In oral evidence, the review applicant stated that the couple speak to each other every day through Facebook, but no documentation was provided detailing these communications and no evidence was provided that the couple draw a degree of companionship or emotional support from each other through these communications. Accordingly, the Tribunal gives the ongoing communication between the parties little weight in determining the nature of the persons’ commitment to each other.

2. In response to questions from the Tribunal, the review applicant also stated that were this review application to be unsuccessful and the visa applicant unable to travel to Australia, she would not relocate to the Philippines to live with her husband. The review applicant stated that living in the Philippines was “like camping” and that she could not leave her adult son, who still resides with her. The review applicant provided no evidence to substantiate the latter claim and the Tribunal notes that the review applicant’s son (also a witness in this matter) is 28 years old and provided no evidence of financial or emotional dependence upon his mother. Accordingly, the Tribunal is not satisfied that the parties see the relationship as a long term one.

3. On the basis of the evidence, the Tribunal finds that the couple have not lived together in a genuine and continuing spousal relationship for any substantive period. The Tribunal accepts that the couple maintain a degree of communication while apart, but does not find that the parties draw a significant degree of companionship and emotional support from each other. On the evidence before it, the Tribunal finds that the persons do not see the relationship as being long term or that the couple has a mutual commitment to a shared life together to the exclusion of others.

4. Having regard to all the circumstances of the relationship, the Tribunal is not satisfied that when the application was made and at the time of this decision, the applicant and sponsor demonstrated a mutual commitment to a shared life to the exclusion of others. The Tribunal is not satisfied that their relationship is genuine and continuing. The Tribunal is not satisfied that the visa applicant and the review applicant live together, or are not living separately and apart on a permanent basis. The Tribunal is not satisfied that the parties are in a spousal relationship.

5. On the basis of the above, the Tribunal is not satisfied that the requirements of s.5F(2)[(b)-(d)] are met at the time the visa application was made, and at the time of this decision.

6. Therefore the visa applicant does not meet cls.309.211(2), 309.221 and 309.223.

   Conclusion

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

   DECISION

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

   Shane Lucas
   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).