Johnson (Migration)

[2019] AATA 3198

Johnson (Migration) [2019] AATA 3198 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jeanne JOHNSON

VISA APPLICANT:  Mr Benoit ONIVOGUI

CASE NUMBER:  1719036

DIBP REFERENCE(S):  BCC2016/1388343

MEMBER:Mireya Hyland

DATE:4 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.211 of Schedule 2 to the Regulations

·cl.300.212A of Schedule 2 to the Regulations

·cl.300.212 of Schedule 2 to the Regulations

·cl.300.213 of Schedule 2 to the Regulations

·cl.300.214 of Schedule 2 to the Regulations

·cl.300.215 of Schedule 2 to the Regulations

·cl.300.216 of Schedule 2 to the Regulations

·cl.300.221 of Schedule 2 to the Regulations

Statement made on 04 June 2019 at 12:49pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) – Subclass 300 (Prospective Marriage) – genuine intention to marry – genuine intention to live together as spouses – consistent evidence about planned future – detailed and persuasive statements from friends and family – evidence of telephone calls and transaction receipts – photographic evidence of couple together – time of application requirements met – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15, Schedule 2, cls 300.211, 300.212 , 300.213, 300.214, 300.215, 300.216, 300.221

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 to refuse to grant the visa applicant, Benoit Onivogui, a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Onivogui applied for the visa on 7 April 2016. At the time the visa application was lodged, Class TO contained one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on 3 August 2017 on the basis that Mr Onivogui did not satisfy cl.300.216 of the Regulations. The delegate was not satisfied that he and his sponsor, Jeanne Johnson, had a genuine intention to live together as spouses.

3. Ms Johnson appeared before the Tribunal by video link from Cairns, Queensland on 31 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Onivogui by telephone from his current residence in Malaysia. The Tribunal hearing was conducted in English, but Mr Onivogui gave evidence with the assistance of an interpreter in the French and English languages. Ms Johnson was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Ms Johnson’s family are from Liberia. They fled as refugees to Guinea before she was born in 1997. Mr Onivogui is a citizen Guinea and lived in Conakry until he moved to Malaysia. Ms Johnson is currently studying a bachelor of nursing at Charles Cook University. She has two jobs, one at a hospital and the other in old age care with BUPA. She takes home about AUD3,000 per fortnight. She will complete her degree in December 2019 after which she will work as a nurse. Mr Onivogui is currently in Malaysia waiting to start studying his Master of Business Administration at City University. He is financially supported by Ms Johnson.

   Does the visa applicant intend to marry an eligible person?

6. Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal accepts that Ms Johnson became an Australian citizen on 26 January 2014. Accordingly, the requirements of cl.300.211 are met.

   Was the visa applicant 18 at the time of application?

7. Clause 300.212A requires that the visa applicant has turned 18. Mr Onivogui was born on 14 June 1988 and was 27 years of age at the time of application. On the evidence before it the Tribunal finds that cl.300.212A is met.

   Is the sponsorship prohibited?

8. Clause 300.212 requires that at the time of application the review applicant is not prohibited from being a sponsor in certain circumstances where she was granted a woman-at-risk visa in the five years immediately preceding the current visa application. Although Ms Johnson did obtain permanent residency as the holder of a Refugee and Humanitarian (Class XB) visa, it was a subclass 202 (Global Special Humanitarian) visa and not a subclass 204 (Woman at Risk) visa. Accordingly, the requirement in cl.300.212 is met

   Was the visa applicant sponsored as required at the time of application?

9. Clause 300.213 requires that at the time of application the visa applicant is sponsored by the review applicant, and that the review applicant has turned 18. Based on the ‘Sponsorship for a partner to migrate to Australia Form 40SP’ on the Department of Home Affairs’ (DOHA) file, the Tribunal accepts that at the time of the application Mr Onivogui was sponsored by Ms Johnson. Ms Johnson was born on 12 October 1997 and at the time of application was 18  years of age. Therefore, cl.300.213 is satisfied.

   Have the parties met in person and are they known to each other personally?

10. Clause 300.214 requires that the parties have met in person since each of them turned 18 and that they are known to each other personally. The Tribunal has had regard to DOHA’s movement records which indicate that Ms Johnson departed Australia on 21 December 2015, when she was 18 years old, and did not return until 9 January 2016. Ms Johnson told the Tribunal that she travelled to Ghana where she met Mr Onivogui and they became engaged. The Tribunal is concerned that it does not have any evidence that Mr Onivogui entered Ghana in December 2015 because the copy of his passport that appears on DOHA’s file was issued in January 2016. However, there is a printout of an electronic ticket for Air Cote D’Ivoire for a flight departing Accra, Ghana at 9:50 on 6 January 2016 and arriving in Conakry, Guinea at 14:00 in his name. The file also contains an electronic ticket for Ms Johnson from Brisbane, Queensland to Accra, Ghana. Although the Flight Centre invoice states her origin is Cairns and the destination is Conakry, Guinea the Tribunal accepts that Ms Johnson met Mr Onivogui in Ghana in December 2015. Therefore, at the time of application, the requirements of cl.300.214 were met.

    Do the parties genuinely intend to marry?

11. Clause 300.215 requires that at the time of application the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period. In light of the evidence provided by Ms Johnson at the hearing the Tribunal accepts the undertaking in the visa application that at the time of application the parties had a genuine intention to marry and satisfied the requirements of cl.300.215(a). The proposed date for the marriage is now as soon after Mr Onivogui’s arrival in Australia as possible, which will be within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 are met.

    Do the parties genuinely intend to live together as spouses?

12. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as 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). While it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ aspirations for their future marriage, with regard to the definition of spouse in the legislation, may assist in determining the parties’ intentions.

13. In considering an application for a prospective marriage visa, the Tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships: r.1.15A(4). These include the intended financial aspects of the relationship, the intended nature of the household, the intended social aspects of the relationship, and the nature of the couple’s intended commitment to each other. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings.

14. In 2005 Mr Onivogui’s family lived next door to Ms Johnson’s family. They lost touch when Ms Johnson came to Australia in 2009. One day in 2014 Ms Johnson received a friend request from Mr Onivogui on Facebook. After looking at his profile she knew who it was and they started to have basic conversations getting to know each other. At the end of 2014 Mr Onivogui asked Ms Johnson to become his girlfriend. Dating online was difficult initially because Ms Johnson cannot write French and Mr Onivogui does not know English. Mr Onivogui claimed in his statement that he would put his messages through a translator. They tried to call each other through Facebook, but the network in Guinea was not good enough. Eventually they exchanged phone numbers and called each other.

15. In May 2015, Ms Johnson and Mr Onivogui decided to introduce each other to their respective families and friends. Several of Ms Johnson’s family and friends already knew Mr Onivogui. In his statement Christopher Johnson, Ms Johnson’s brother, states that he investigated the genuineness of Mr Onivogui’s intentions when he returned to Guinea to marry his wife. In June 2015, the couple gave their families each other’s phone number so they could be contacted in the event of something happening to either of them. In December 2015 Ms Johnson and Mr Onivogui decided to meet in Ghana where Ms Johnson has a friend, Pricilla. Because Mr Onivogui was not working he only had GHC1,000 (approximately AUD270). Ms Johnson provided the other GHC2,600 (approximately AUD700) necessary for the trip. Mr Onivogui also brought food, which Pricilla had told them was expensive in Ghana. On 22 December 2015 Ms Johnson and Mr Onivogui met face to face for the first time as adults. It was in Ghana that Mr Onivogui asked Ms Johnson to marry him.

16. When Mr Onivogui’s visa was refused Ms Johnson paid for him to go to Malaysia to study English. She told the Tribunal that it is easier for her to visit him in Malaysia and telephone calls are much cheaper. According to DOHA’s records on 21 December 2017 Ms Johnson departed Australia for Malaysia where she stayed with Mr Onivogui until 11 January 2018. After his English course finished Mr Onivogui was required to return to Guinea and wait for his visa to start his MBA. He returned to Malaysia a few months ago and is now waiting to start classes at City University. Ms Johnson said that Mr Onivogui will not stay in Malaysia to finish his degree if he is granted a visa. Nor will he continue his education in Australia. He will come to Australia and get a job. The sole purpose for moving Mr Onivogui to Malaysia is for him to learn some English and to enable the couple to see each other more often and communicate more cheaply. Ms Johnson will visit Malaysia at the end of June 2019.

17. The couple told the Tribunal that once Mr Onivogui comes to Australia they will get married as soon as possible. He will find a job and they will open a joint bank account. Ms Johnson has recently bought her first home, a three bedroom, two bathroom house in Mt Peter, Queensland. She will arrange to have Mr Onivogui put on the title and the mortgage. Currently there are students living in two of the bedrooms and they will stay there once Mr Onivogui comes to Australia, but they will have to leave when the couple has children. They expect to have three or four children and would like to have the first child right away. Ms Johnson told the Tribunal that there will not be any particular division of labour in the household chores. The cooking, cleaning, and laundry will be done by whoever is not working and free to do it. She said she likes working in the garden and they will do that together. She told the Tribunal that Mr Onivogui is a very social person and will fit in well to her social life. They will attend African community events and ceremonies, and socialise with her friends and family. Ms Johnson told the Tribunal that when she visited Malaysia she spent time with his friends.

18. The Tribunal does have some concerns about evidence on the files and there were minor inconsistencies in the parties’ evidence at the hearing. For instance, while Ms Johnson told the Tribunal that they would both do the cleaning and gardening, Mr Onivogui said that she would be in charge of the cleaning and he would do the gardening. Ms Johnson said that two of her rooms are rented out, but Mr Onivogui told the Tribunal there was only one student renting a room in Ms Johnson’s house. Ms Johnson said that they would only keep the renters until Mr Onivogui got a job after which they would not need the renters to pay the mortgage and she would not need to work as much. Mr Onivogui said that the renters could stay as long as they needed to stay, but would need to move once they had children.

19. Also of concern to the Tribunal are the remittances in 2017 from Ms Johnson to Mr Onivogui. She claims that she is supporting him and 44 transaction receipts from WorldRemit were provided to the delegate to support that claim. However, the address for all remittances listing Mr Onivogui as the receiver is Loge A Coza, Accra, Ghana. All the remittances sent to Conakry, Guinea have a receiver who is not Mr Onivogui. Both Ms Johnson and Mr Onivogui told the Tribunal that the remittances with the Ghana address were for their trip to Accra in December 2015 and Mr Onivogui’s trip back to Ghana in February 2017 for his interview with DOHA. But the transactions are dated regularly from June 2016 through June 2017 and the service is for cash pickup, therefore, this explanation is not accepted. Neither could give the Tribunal any other explanation for why remittances appeared to go to Mr Onivogui in Ghana and no remittances were going to him in Guinea. Ms Johnson provided seven remittances to Mr Onivogui in Malaysia, the last one being in September 2018. She explained to the Tribunal that there had not been further transactions because Mr Onivogui was in Guinea waiting for his visa, but she had indicated to the delegate that she had also been supporting him in Guinea making the explanation less than satisfactory.

20. Also of concern is that Ms Johnson said that she cannot write French and Mr Onivogui said in his statement that he put his messages through a translator into English. However, the messages provided to the delegate as evidence of their communications were in French not English. A list of calls to a telephone number in Guinea was provided to the Tribunal for 13 February to 12 April (although there is no indication of the year the Tribunal presumes this is 2018 when Mr Onivogui returned to await his new student visa). Many of these are very short, lasting less than 10 minutes and sometimes as short as a minute. The Tribunal was also provided with Optus usage data for 1 March 2018 to 16 May 2018, but was given no indication which number was being provided in support of the couple’s ongoing communication.

21. Despite its concerns, the Tribunal is acutely aware from delegate’s decisions that applicants are all too often given the impression by delegates that they must meet the threshold for the definition of spouse which is not the test for a prospective marriage visa. Therefore, it is only natural that they might exaggerate, for instance, their financial connections or contact. The Tribunal does note that a Malaysian phone number starts being called on the Optus printout at about the same time as the records for the Guinean number end. While these calls are less often than the calls to the Guinean number they are in general for quite long periods of time. The Tribunal also accepts that minor differences in understanding about things that are not yet of direct relevance like who will eventually clean or garden and in exactly what circumstances renting the rooms out might stop are not necessarily unexpected. After all the couple did give generally consistent evidence about their future plans.

22. The Tribunal has considered the fact that Mr Onivogui is a fulltime student and that Ms Johnson earns around AUD3000 per fortnight so it is possible that she could be supporting him. Following the hearing Ms Johnson informed the Tribunal that the remittances to Mr Onivogui with the Ghanaian address were not sent to him in Ghana. She simply did not change the address on the account which she initially used to receive money in Ghana for their trip. The Tribunal accepts her evidence that the address field is not mandatory so she did not think to update it and notes the currency of the received money is Guinean Francs not Ghanaian Cedi. This does not overcome the Tribunal’s concerns that Ms Johnson said she was supporting Mr Onivogui before meeting him in Ghana and so the address on the account, if it were not changed, should be his address in Guinea, but it does explain the mystery of 12 months of remittances to Mr Onivogui that apparently went to Ghana when he was in Guinea. On all the evidence the Tribunal accepts that Ms Johnson has been supporting Mr Onivogui at least in part since their engagement in early 2015.

23. The Tribunal has considered all the evidence before it, including the parties’ consistent evidence at the hearing about their planned future, detailed and persuasive statements from friends and family about their current relationship and future intentions, evidence of telephone calls, transaction receipts showing money going to Malaysia while Mr Onivogui was there, and photographs of the couple together in Malaysia alone and with friends. It has balanced that evidence with its concerns. All things considered it has decided to give Ms Johnson and Mr Onivogui the benefit of the doubt. As noted above, the threshold for a prospective partner visa is far less onerous than that of a partner visa. When Mr Onivogui applies for his partner visas the couple will need to provide significant evidence to support that they are then in a spousal relationship and the Tribunal respectfully suggests that DOHA look closely at whether they have mingled their lives in the way they are now claiming they will once married. However, although it does have some concerns about whether the relationship is currently as permanent or as advanced as the couple claim, the Tribunal is satisfied that their intentions to marry and enter a committed relationship at that time have been genuine since their trip to Ghana in 2015.

24. On the basis of the above information, although some of the evidence on which it is relying has occurred after the time of application, the Tribunal is satisfied that at the time of the visa application Ms Johnson and Mr Onivogui intended, once married, to be in a married relationship as defined in the Act. They intended to marry each other under a  marriage that is recognised as valid for the purposes of the Act and intended their relationship to be a genuine and continuing mutual commitment to a shared life as a married couple to the exclusion of all others. They also intended to live together. As such, the parties genuinely intended to live together as spouses at the time of the application and cl.300.216 is met.

    Do the parties continue to meet time of application requirements?

1. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. The Tribunal finds that at the time of making this decision Mr Onivogui intends to marry an Australian citizen, Ms Johnson; that Ms Johnson and Mr Onivogui have met and are known to each other personally; that Ms Johnson and Mr Onivogui genuinely intend to marry and intend to do so during the visa period; and that Ms Johnson and Mr Onivogui continue to genuinely intend to live together as spouses as defined in the Act. Accordingly, cl.300.221 is met.

2. 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 300 visa.

   DECISION

3. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

   ·cl.300.211 of Schedule 2 to the Regulations

   ·cl.300.212A of Schedule 2 to the Regulations

   ·cl.300.212 of Schedule 2 to the Regulations

   ·cl.300.213 of Schedule 2 to the Regulations

   ·cl.300.214 of Schedule 2 to the Regulations

   ·cl.300.215 of Schedule 2 to the Regulations

   ·cl.300.216 of Schedule 2 to the Regulations

   ·cl.300.221 of Schedule 2 to the Regulations

   Mireya Hyland
   Member