Kbolo (Migration)

[2017] AATA 2252

Kbolo (Migration) [2017] AATA 2252 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr John Akout Adlino Kbolo

VISA APPLICANTS:  Miss Ester Pelegrino Langoya Omwony
Miss Robie Butrus Anthony Olaha

CASE NUMBER:  1615219

DIBP REFERENCE(S):  OSF2015/063006

MEMBER:Marten Kennedy

DATE:8 November 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 08 November 2017 at 10:16am

CATCHWORDS

Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Genuine spousal relationship - Short duration of relationship – History of visa refusals – Family already present in Australia – Limited knowledge of personal details of partner

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, r 1.15A, Schedule 2, cl 309.211

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 August 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first-named visa applicant (the visa applicant), Ms Omwony, applied for the visa on 30 December 2015 on the basis of her relationship with her sponsor, the review applicant, Mr Kbolo.

3. 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. The secondary applicant for the visa need satisfy only the secondary criteria.

4. Relevantly to this matter the primary criteria include cl.309.211 which may relevantly be satisfied through cl.309.211(2). This relevantly requires that at the time the visa application was made the visa applicant is the ‘spouse’ of an Australian.

5. In the present case Ms Omwony claims to be the spouse of Mr Kbolo, who is an Australian citizen.

6. ‘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.

7. In this case, I proceed on the basis that Mr Kbolo and Ms Omwony were married on 15 October 2015, the marriage was registered with Egyptian authorities on 14 November 2015, and that this marriage is a valid marriage for the purposes of the Act.

8. For migration purposes however, a valid marriage is of itself insufficient.  In addition, I must be satisfied to determine that:

   ·there is a mutual commitment to a shared life as husband and wife to the exclusion of all others,

   ·the relationship is genuine and continuing, and

   ·the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(b)-(d).

9. The delegate refused to grant the visa on the basis that the visa applicant had provided insufficient evidence to satisfy the delegate to make those determinations.  In this regard, staff of the Tribunal also contacted Mr Kbolo by telephone in advance of the hearing to emphasise the need to provide more corroborating documentary evidence.  No further documentary evidence was provided by Mr Kbolo in response to this contact.

10. Also, I note the delegate was concerned about irregular contact and a short period of time in which the decision to marry was reached.  The delegate was concerned that Ms Omwony did not know the name of Mr Kbolo’s family members at interview, and believed the marriage was orchestrated by Ms Omwony’s siblings who reside in Australia. The delegate concluded in light of these matters that the relationship was not genuine.

11. 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).

    Consideration

12. In a statement accompanying the application, Ms Omwony states that the relationship commenced in April 2012 when Mr Kbolo travelled to Egypt from Australia. Ms Omwony states that she informed Mr Kbolo that she already had a child with a man who had abandoned her, and that she accepted Mr Kbolo because he agreed to take her responsibility with her child.  The couple agreed to marry on 14 October 2015 in Egypt.

13. On 17 March 2016, Ms Omwony was interviewed at the Australian Embassy in Cairo.  Her responses to questions gave rise to the concerns I have briefly mentioned above.  I will set out these matters, and the other evidence before me, by reference to the factors I am obliged to take into account under the Regulations.

14. At the commencement of the hearing, Mr Kbolo confirmed that the last time he had seen his wife in person was in January 2016.

15. As to the 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; and any sharing of day-to-day household expenses, Mr Kbolo told me that he was not sending money to Ms Omwony due to financial difficulties.  Mr Kbolo told me he is currently relying on Centrelink, but in 2015 was working as a factory worker.

16. I asked Mr Kbolo if he had informed Centrelink that he was a married person.  Mr Kbolo said he had not reported it to Centrelink, because he did not know how to connect with Centrelink.  I asked what he had stated when he applied for Centrelink benefits, but Mr Kbolo said he did not mention his marriage.  Mr Kbolo said he did not understand the Centrelink system.  I explained to Mr Kbolo that the information he was giving may be relevant to considering the social aspects of the relationship, as he appears to be representing himself to Centrelink as a single person.  Mr Kbolo restated that he did not understand the system.

17. Returning to the financial aspects of the relationship, Mr Kbolo confirmed that he and Ms Omwony did not own valuable property together, and nor did they jointly owe any debts.  I asked if they had ever put their money together to meet common expenses. Mr Kbolo said when they stayed together in Egypt he gave her some money to spend.  He said that he had paid for food and other services in the house they were staying in. Mr Kbolo said they had stayed in Ms Omwony’s home and he paid the rent for the time he was there, and then sent Ms Omwony money up until March 2017 when his own rent increased.  Mr Kbolo said his wife had paid the rent from earnings from her work before his travel to Egypt.  As to why she needed him to pay her rent after he travelled to Egypt he said he did so because he wanted to help her.

18. I have taken into account the limited evidence of money transfers to Ms Omwony in December 2016 , March 2016 and December 2016.  I also note the records made of the interview with Ms Omwony in which she gave similar evidence about the money transfers and her employment.

19. As to the nature of the household – including any joint responsibility for care and support of children; the parties' living arrangements; and any sharing of housework, I explored the circumstances of Mr Kbolo and Ms Omwony. Mr Kbolo said he shares a house with two other people.  If the visa was granted, he would obtain financial assistance from his cousin and Ms Omwony would stay with them until they could look for their own house.  As to Ms Omwony’s circumstances, Mr Kbolo told me that she lives in Cairo with her daughter in an apartment tower.  Mr Kbolo told me that Ms Omwony works as a cleaner.  She has lived in Egypt since 2005.   I take into account also the evidence Mr Kbolo gave me regarding the couple’s cohabitation during the period Mr Kbolo was in Egypt.

20. As to the social aspects of the relationship – including 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 persons plan and undertake joint social activities, I have taken into account the undated statutory declaration of Mr Marcello Urube, who states that he was from the same village in South Sudan as Mr Kbolo.  He states that Mr Kbolo has told him about his wife and his marriage, and that the marriage has been accepted by the families.

21. I also take into account the statutory declaration of Mr Emmanuel Abu, who likewise knows Mr Kbolo from their village in Africa. Mr Abu states that he has communicated with Ms Omwony.  He states he believes the relationship is genuine, and the couple’s community support the relationship.

22. In the context of the social aspects of the relationship, I invited Mr Kbolo to address my concern that Ms Omwony at interview at the Australian Embassy appeared not to know the names of two of his three children. I was concerned that a lack of knowledge in this regard may indicate limited communication.

23. In response to my concerns, Mr Kbolo said that the reason his wife didn’t know the names of two of his children is that the children had a different mum and the children lived in a different place. I observed it may indicate that she did not know very much about Mr Kbolo if she did not know the names of his children.  Mr Kbolo said she had not paid attention to know the names of his children.

24. I also observed that the immigration officer had identified that Ms Omwony did not know the names of Mr Kbolo’s sisters.  I asked why she would not know the names of close members of his family.  Mr Kbolo said it was because his sisters were not there with her.

25. I invited Mr Kbolo to comment on the immigration officer’s concerns that there did not appear to be any significant wedding celebration at the time of their marriage.  Mr Kbolo said that this was due to the expense.  In response to my query whether there was even a low key celebration, Mr Kbolo showed me photographs of a gathering, and I have taken into account those photographs.  The photographs show a very modest gathering that cannot immediately be recognised as celebrating a significant occasion such as a wedding, for example Ms Omwony (the bride) wears trousers and a denim jacket.  Mr Kbolo emphasised it was a very simple celebration.

26. As to the nature of persons' commitment to each other – including duration of the 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, I explored a number of aspects of this factor that presented themselves on the evidence before me.

27. I asked Mr Kbolo if a dowry / bride price had been paid.  Mr Kbolo said that a dowry / bride price would not be paid until his wife came to Australia.  Although I had understood Mr Kbolo to indicate that the dowry / bride price was deferred until Ms Omwony was granted a visa, Mr Kbolo said that the dowry / bride price is not contingent on the visa being granted.

28. As to why Mr Kbolo had not visited his wife since early 2016, Mr Kbolo said he could not do so due to financial constraints.  I observed that I had seen situations where people in similar financial difficulties had still found the resources to visit their spouses overseas more regularly.  Mr Kbolo explained that he was undertaking a course that prevented his travel.

29. I asked Mr Kbolo who had paid the visa application charge.  Mr Kbolo told me he had paid it, and the community had contributed for him to be able to afford to pay it.  He had not asked the community to contribute to the cost of travel for him to visit his wife.  I asked if Ms Omwony’s relatives in Australia had paid the visa application charge, but Mr Kbolo said they had not helped.  Mr Kbolo said he had visited his wife’s relatives in Sydney in May this year. Although I put the question to Mr Kbolo a number of times in different ways, I did not receive a response to my query as to why none of his wife’s family had given evidence in support of the application.

30. I invited Mr Kbolo to respond to the immigration officer’s concern that the visa application was being orchestrated by Ms Omwony’s family in Australia and perhaps should be considered in the context that his wife had been refused six visas for Australia previously. Mr Kbole emphasised that Ms Omwony was his wife, and he did not know about the six previous visa refusals.

31. I also invited Mr Kbolo to respond to the immigration officer’s concern that there was a very short period of time between meeting his wife and the couple getting married.   In this regard, the immigration officer had noted that in 2011, when Mr Kbolo and Ms Omwony claimed to have met prior to the decision to get married, Mr Kbolo had only transited through Egypt for two days.  This was in contrast to information given to the Department at interview by Ms Omwony who said Mr Kbole had visited Egypt for two weeks on that occasion.

32. Mr Kbolo said that he had known his wife before he had come to Australia as they had lived in the same area.  As to the inconsistency in the amount of time Mr Kbolo had spent in Egypt on that occasion, Mr Kbolo said he had been there for two days and he did not know why his wife had said otherwise.  I indicated I found it difficult to accept he would meet someone and decide to get married within 2 days.  Mr Kbolo restated that he had known his wife previously.  I mentioned that the immigration officer had correctly observed there was no evidence to support that claim, but Mr Kbolo restated that he and his wife had lived in the same area previously.  Later in the hearing, I asked Mr Kbolo why Ms Omwony would not know the name of his sisters if they had lived nearby and were known to each other for many years, Mr Kbolo said his sisters were not there, and the community in South Sudan had been dispersed and it was difficult.  Mr Kbolo also confirmed that Ms Omwony would not have known about his daughter in Egypt.

33. I summarised my concerns by observing that it appears that the couple decided to get married very quickly, there was inconsistent information about how much time they had spent together before deciding to get married, and there was no evidence to corroborate that they had known each other before that time.  I explained I had these concerns in the context that his wife had family in Australia, and has previously been refused six visas for Australia. I explained that in context, it made me wonder whether the relationship was genuine or whether it was being arranged by Ms Omwony’s family to bring her to Australia.

34. In response, Mr Kbolo said that he had made a commitment to his wife and that was why he had previously travelled to see her.

35. I received evidence from Mr Jacob.  Mr Jacob told me he had come to the Tribunal to support his brother (more accurately, cousin) and his wife to be.  Mr Jacob told me he would organise the church for the wedding and manage the communication between the families.  Mr Jacob told me he had spoken with a priest and the family of Ms Omwony in Sydney.  Mr Jacob explained that the families were becoming close and gave the example of Ms Omwony taking steps to check on Mr Kbolo’s daughter in Cairo.  I explained I was concerned about this evidence because when Ms Omwony was asked about Mr Kbolo’s daughter living in Cairo, she did not know her name.  Mr Jacob’s response was that in the Sudanese community it is not unusual that people do not know each other’s names, because people fleeing South Sudan would often have to change their names.

36. I have assessed the evidence before me carefully, conscious of the importance of understanding the evidence in the particular cultural context, and conscious that norms and expectations of many of the aspects of the evidence discussed at hearings may differ between Australia and the South Sudanese community, particular members of the community who are resident in Egypt.  However, after considering all the evidence, and in particular the various concerns I share with the delegate and raised with Mr Kbolo, and Mr Kbolo’s responses, I have concluded that I am not satisfied that the relationship is genuine, in the sense that I am not satisfied there is a mutual commitment to a shared life to the exclusion of all others.

37. It is, of course, necessary to elaborate on the particular matters that have lead me to this conclusion. Again, I will do so by addressing the various factors I am obliged to take into account in deciding whether to make the determinations necessary to find that Mr Kbolo and Ms Omwony are in a spousal relationship, although much of the evidence overlaps these factors, and some of the factors are barely applicable to the circumstances of Mr Kbolo and Ms Omwony.

38. For example, I have considered the financial aspects of the relationship and the nature of the household, but recognise that as Ms Omwony resides in Cairo and Mr Kbolo in Adelaide, and both have limited financial resources, the usefulness of this consideration is limited.  However, I note that there are no joint assets and no joint liabilities.   I accept that Mr Kbolo provided some financial assistance over time, including the relatively short period he stayed with Ms Omwony in Cairo, but the nature of this pooling of financial resources does not overcome concerns I set out later in these reasons.

39. As to the nature of the household, I have considered Mr Kbolo’s expressed aspirations about a future shared household, but place limited weight on this evidence in forming a view about the characteristics of the relationship at the time of application.

40. As to the social aspects of the relationship, I accept that friends and acquaintances have represented to the Department and to me that they view the relationship as a genuine spousal relationship.  I place a degree of weight on this important aspect of the evidence, but on balance have concluded that it does not outweigh the sum of my adverse concerns.

41. The concerns I have are essentially those summarised to Mr Kbolo at the hearing and also mentioned by the delegate.

42. I am concerned that Ms Omwony demonstrated very little knowledge of Mr Kbolo’s family when interviewed by the Australian Embassy.  Given Mr Kbolo and Ms Omwony live in circumstances very unfamiliar to me, evidence of a high degree of knowledge of each other’s affairs and family would have been very important, perhaps sufficient to overcome the absence of a pooling of financial resources or a joint household.  However, Ms Owmony did not know the names of some of Mr Kbolo’s children or his sisters.  I found the explanation offered by Mr Kbolo as to why this was the case to be unconvincing, and infer instead that Ms Omwony does not know Mr Kbolo very well at all.  The evidence of internet-based telephone calls being made does not displace this concern.

43. Furthermore, I infer from the fact that Ms Omwony did not know the names of Mr Kbolo’s sisters that Ms Omwony was not known to Mr Kbolo from many years previously as a person who lived in the same area.  I also agree that the two days Mr Kbolo spent transiting Egypt in 2011 is insufficient to form a relationship giving rise to a genuine commitment for marriage.  I do not accept the explanation that it came about in circumstances where Ms Omwony was already known to Mr Kbolo, because I do not accept that she was. 

44. Similarly, I do not accept the evidence of Mr Jacob to the effect that Ms Omwony has become integrated into Mr Kbolo’s family through providing assistance to his daughter who resides in Cairo.  I do not accept this to be the case in circumstances where Ms Omwony could not name that person when interviewed by the Department.

45. As to the social aspects of the relationship, I am concerned that Mr Kbolo has represented to Centrelink that he is a single person. I do not accept that the requirements to notify Centrelink of events such as marriage, or the potential consequences for a person’s rate of social security are beyond Mr Kbolo’s comprehension.

1. Also as to the social aspects of the relationship, I am concerned that there is no evidence before me from any member of Ms Omwony’s family in support of the application.

2. To these significant concerns, I add lesser concerns regarding the absence of any significant celebration of the marriage at the time it was conducted.  The photographs of the celebration are not consistent with even a low-key wedding celebration.  The professional photographs provided with the application in contrast to the photographs of what is represented to be the actual marriage celebration in this context take on an appearance of being contrived for the purpose of the visa application.

3. I also add as a lesser concern the evidence I received from Mr Kbolo about the unusual and vague arrangements for the payment of a bride price.  I place limited weight on this however given the circumstances in which Ms Omwony lives, essentially as a person displaced from South Sudan, and accept the real possibility that traditional wedding practices are no longer strictly followed.  Similarly, it is a concern that Mr Kbolo has not taken steps to travel to see his wife in nearly 18 months, although I recognise that Mr Kbolo faces difficult financial circumstances.

4. The weight of all these concerns combine to leave me unsatisfied as to the genuineness of the relationship.  More specifically, I have a strong suspicion that the relationship is contrived to secure a migration outcome for Ms Omwony.  I am conscious that a genuine marriage and a desire for a favourable migration outcome are not incompatible circumstances, but the weight of my concerns in this matter are such that that I am not satisfied there is a genuine spousal relationship.  More specifically, I am not satisfied on the evidence to determine that Mr Kbolo and Ms Omwony have a mutual commitment to a shared life as husband and wife to the exclusion of all others.

5. I decline to make that determination, and therefore I do not find Ms Omwony and Mr Kbolo to be in a married relationship at the time of the visa application. It further follows that I am not satisfied that Ms Omwony is the spouse of an Australian citizen. In these circumstances, Ms Omwony does not satisfy cl.309.211(2) of Schedule 2 to the Regulations.

6. I have considered the alternative means of satisfying cl.309.211 of Schedule 2 to the Regulations, but as Mr Kbolo and Ms Omwony claim to have already married in Egypt, I am not satisfied that Ms Omwony intends to marry an Australian citizen at the time of the visa application.

7. Therefore Ms Omwony does not meet cl.309.211 of Schedule 2 to the Regulations, and the visa must be refused to her.

8. As the secondary visa applicant relies on her status as a member of the family unit of Ms Omwony, she will not satisfy the secondary criteria for the grant of the visa, and the visa must also be refused to the secondary applicant.

   DECISION

   The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

   Marten Kennedy
   Member