Joe (Migration)

[2024] AATA 3870

Joe (Migration) [2024] AATA 3870 (13 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ericson Joe

VISA APPLICANT:  Ms Lucy Nanun Joe

CASE NUMBER:  2115541

DIBP REFERENCE(S):  BCC2020/1641120

MEMBER:Edward Howard

DATE:13 September 2024

PLACE OF DECISION:  Brisbane

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(2) of Schedule 2 to the Regulations

·cl 309.221(1) of Schedule 2 to the Regulations

Statement made on 13 September 2024 at 2:52pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa - subclass 309 – parties validly married– financial contributions made by the review applicant over a period of many years – have a child together – parties represent themselves to other people as being married to each other – parties are in a genuine spousal relationship – decision under review remitted      

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 Home Affairs on 17 September 2021 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 28 May 2020 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 of Schedule 2 to the Regulations.

4. The review applicant appeared before the Tribunal on 10 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Ms Lucy Nanun Joe.

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

   BACKGROUND

6. The review applicant is Mr Ericson Joe, aged 39 years, a permanent resident of Australia and the visa applicant is Ms Lucy Nanun Joe, age 36 years, a citizen of Liberia.

7. The parties met in about July 2006 in a refugee camp in Guinea. They commenced dating shortly thereafter and began living together on 2 January 2007. The parties had a child together, a son, born on 13 November 2007. The relationship between the review applicant and the child has been confirmed by DNA testing.

8. The review applicant arrived in Australia on a Subclass 202 Humanitarian Visa on 17 December 2008. On 14 April 2009 he lodged a Subclass 202 Humanitarian Visa on behalf of the visa applicant, which was subsequently refused.

9. The review applicant remained in Australia and in contact with the visa applicant. However, by his own admission he had two brief relationships from which three further children were born. The evidence is that he has supported these three children Australia as well as the visa applicant and his son.

10. The review applicant conceded that his relationship with the visa applicant suffered greatly as a result of the distance between them. He expressed great remorse at the two short term relationships that he had and for the hurt that it caused the visa applicant.

11. The review applicant’s evidence is that in about 2015, he rekindled his relationship with the visa applicant. His evidence was that he had matured and came to the conclusion that the visa applicant was the person with whom he wished to spend his life.

12. Subsequently, the review applicant returned to visit the visa applicant in Guinea in May 2017 and the parties were married in the presence of family members on 19 May 2017.

13. The review applicant also returned to Guinea to spend time with his wife and son, from 2 December 2019 until 16 January 2020. On 28 May 2020, the parties lodged an application for a Subclass 309 Partner Visa. The review applicant was unable to travel to Guinea during the pandemic. Since the reopening of the Australian borders in early 2022, he has planned to travel, however he and his wife have discussed the expense involved and their hope that a decision would be reached shortly in relation to her visa. As a result, he has not returned to Guinea since that time.

    ISSUES AND LAW

14. There is a two-stage process for offshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

15. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the review applicant were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1]

16. The issue in the present case is whether at the time of the visa application and the time of this decision, the parties satisfy the criteria under cl.309.211 and cl.309.221.

    Whether the parties are in a spouse or de facto relationship

17. 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 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 applicant claims to be the spouse of the review applicant who is an Australian Permanent Resident.

    [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

18. ‘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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

19. On the evidence, the parties were married to each other on 19 May 2017 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 including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

20. The parties claim to have first met in July 2006 at a refugee camp in Guinea. They began dating a short time later and commenced cohabitation in January 2007. Their son was born in November 2007. The review applicant was granted a Subclass 202 Humanitarian Visa and entered Australia in December 2008. On 14 April 2009 he lodged a similar application on behalf the visa applicant, which was refused by the Department. The parties were eventually married in Guinea on 19 May 2017.

21. Whilst the review applicant has conceded that the relationship deteriorated for a number of years, the evidence supports his contention that he has continued to provide significant financial support to the visa applicant and his son continuously since 2007. He has provided extensive evidence of the monetary transfers that he has made to assist them with their day-to-day expenses and general financial obligations.

22. The Tribunal accepts that due to the fact that the parties live in different countries, the financial aspects of the relationship are limited and the parties have no liabilities nor owe legal obligations to each other. The Tribunal does note however the financial contributions made by the review applicant over a period of many years and in travelling to Guinea on two occasions to spend time with the visa applicant. The Tribunal weighs the financial aspects in favour of the visa applicant.

    Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

23. The parties have lived in different countries from the time of their initial cohabitation in January 2007. The relationship was greatly strained by the distance between them and by the review applicant’s relationships with two other women in Australia by which he has three other children.

24. However, the review applicant has made two trips to Guinea to spend time with the visa applicant and his son, with their marriage taking place in May 2017.

25. The Tribunal is satisfied that during the periods in which the review applicant was visiting his wife and son in Guinea, the parties’ household and living arrangements were consistent with that of a married couple in a genuine relationship. The Tribunal weighs consideration of the household aspects of the relationship in favour of the visa applicant.

    Social aspects of the relationship – including whether 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 persons plan and undertake joint social activities.

26. In relation to the social aspects of the relationship, the parties have provided extensive supporting statements from family members and friends attesting to the genuineness of their relationship.

27. The Tribunal notes that each of the declarants provide credible observations of the time that they have spent with the parties and their belief in the genuineness of the relationship. The Tribunal gives weight to these statements in support.

28. The Tribunal is satisfied on the evidence that the parties represent themselves to other people as being married to each other, that they hold the favourable opinion of friends and family members about the nature of the relationship and that they plan and undertake joint social activities. The Tribunal weighs the social aspects of the relationship in favour of the visa applicant.

    Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

29. The review applicant is Mr Ericson Joe, aged 39 years, a permanent resident of Australia and the visa applicant is Ms Lucy Nanun Joe, age 36 years, a citizen of Liberia. The parties met in about July 2006 in a refugee camp in Guinea. They commenced dating shortly thereafter and began living together on 2 January 2007. The parties had a child together, a son, born on 13 November 2007.

30. The review applicant arrived in Australia on the Subclass 202 Humanitarian Visa on 17 December 2008. On 14 April 2009 he lodged a Subclass 202 Humanitarian Visa on behalf of the visa applicant, which was subsequently refused.

31. The review applicant remained in Australia and in contact with the visa applicant. However, by his own admission he had two brief relationships from which three further children were born. The review applicant conceded that his relationship with the visa applicant suffered greatly as a result of the distance between them. He expressed great remorse at the two short term relationships that he had and for the hurt that it caused the visa applicant.

32. The review applicant’s evidence is that in about 2015, he rekindled his relationship with the visa applicant. His evidence was that he had matured and came to the conclusion that the visa applicant was the person with whom he wished to spend his life.

33. Subsequently, the review applicant returned to visit the visa applicant in Guinea in May 2017 and the parties were married in the presence of family members on 19 May 2017.

34. The review applicant has returned on a further occasion to spend time with his wife and son in Guinea, from 2 December 2019 until 16 January 2020. On 28 May 2020, the parties lodged an application for a Subclass 309 Partner Visa. He was unable to travel to Guinea during the pandemic.

35. The parties have provided extensive photographs of themselves together and in the company of family and friends. These photographs cover a range of events and locations in Guinea. The parties have also provided a number of statutory declarations in support of the relationship.

36. The parties have provided evidence of the significant financial commitment made by the review applicant over a period of many years. The parties also provided evidence of their time spent together in Guinea consistent with that of a married couple in a genuine, long-term spousal relationship. The evidence demonstrates the clear recognition by family and friends of the relationship between the parties, recognising the parties as a genuine married couple.

37. From the evidence provided, the Tribunal finds that the parties are in a genuine and continuing spousal relationship, show a strong commitment to each other, provide significant emotional support to each other and clearly see the relationship as long-term. The Tribunal weighs the nature of the commitment in favour of the visa applicant.

    Overall Conclusions

38. Having carefully considered all the evidence and for the reasons above, the Tribunal is satisfied that at the time of application, the parties 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 lived together or not separately and apart on a permanent basis. The Tribunal is therefore satisfied the requirements of section 5F(2) of the Act were met the time of the visa application.

39. The Tribunal is further satisfied that at the time of this decision the parties continue to have a mutual commitment to a shared life to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also satisfied that they have lived together or not separately and apart on a permanent basis. The Tribunal is therefore satisfied the requirements of section 5F(2) of the Act are met at the time of this decision.

40. The Tribunal is therefore satisfied that the parties’ relationship fulfilled the criteria contained in clause 309.211(2) of the regulations at the time the visa application was made.

41. Pursuant to clause 309.221(1), in order to be eligible for the grant of a subclass 309 (UF) visa, the visa applicant must also continue to meet the requirements of clause 309.211(2) at the time of this decision. Having regard to the evidence before the Tribunal, the Tribunal is satisfied that the visa applicant continues to meet the requirements of clause 309.211(2), hence satisfying the criteria in clause 309.221(1).

42. Therefore, the Tribunal finds that the visa applicant meets the requirements of clauses 309.211(2) and 309.221(1).

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, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner) visa:

    ·cl 309.211(2) of Schedule 2 to the Regulations

    ·cl 309.221(1) of Schedule 2 to the Regulations

    Edward Howard

    
    

    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).