Kolora (Migration)

[2020] AATA 6136

Kolora (Migration) [2020] AATA 6136 (3 July 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Alumeci Kolora

CASE NUMBER:  1803099

DIBP REFERENCE(S):  BCC2017/1924701

MEMBER:Andrew McLean Williams

DATE OF DECISION:  3 July 2020

DATE CORRIGENDUM

SIGNED:24 May 2021

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following correction is made to the decision:

1. Paragraph 7, line 1 – delete ‘cl 801.211(2)(a)’ and replace with ‘cl 820.211(2)(a).’

Andrew McLean Williams
Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Miss Alumeci Kolora

CASE NUMBER:  1803099

DIBP REFERENCE(S):  BCC2017/1924701

MEMBER:  Andrew McLean Williams

DATE:  3 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 03 July 2020 at 4:12pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship for 12 months before the visa application – sponsor in an existing marriage – de facto relationship criteria – no financial convergence – joint mosque attendance – children from other relationships – decision under review affirmed         

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 820.211, 820.221

CASES

He v MIBP [2017] FCAFC 206
Paduano v MIMIA [2005] FCA 211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 29 January 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (‘the Act’).

1. The applicant applied for the visa on 31 May 2017 on the basis of her relationship with her sponsor, Mr Rashid Ali. At that time, Class BS contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 801 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.

1. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.211, because the delegate could not be satisfied that the applicant and her sponsor had been in a genuine de facto relationship for 12 months prior to the date of lodgement of the visa application, and also at the time of lodgement of the visa application.

1. The applicant appeared before the Tribunal by means of telephone on 31 March 2020 to give evidence and make submissions. The Tribunal also received evidence by telephone from Mr Rashid Ali. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. Mr Ali was able to speak good English, yet the applicant required some assistance.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant and her sponsor were in a genuine de facto relationship, both at the time of the application for the spousal visa and as at the date of the Tribunal making a determination on this application for review.

Whether the parties are in a spouse or de facto relationship?

1. Relevantly to this matter, cl.801.211(2)(a) in Schedule 2 of the Regulations requires that at the time of application, the applicant is either the ‘spouse’ or ‘de facto partner’ of the sponsoring partner, who must be an Australian citizen, or an Australian permanent resident, or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the ‘spouse’ or ‘de facto partner’ of the applicant. Clause 801.221(1)(a) then also requires that these matters continue to be satisfied by the applicant as at the time of making a determination regarding the applicant’s eligibility for the Subclass 820 visa.

1. In the present case, the applicant claims to be in an Islamic marriage and to be the wife of her sponsor, Mr Rashid Ali. An Islamic wedding ceremony between the applicant and Mr Ali took place on 21 August 2016, which was the same day as the applicant had arrived in Australia for the first time. It is further to be noted that Rashid Ali was born on 19 September 1954, and that the applicant was born on 12 May 1994, thus making Mr Ali nearly 40 years senior to the applicant. Mr Ali is also the uncle of the applicant, by marriage. Mr Ali is also still married to another woman in Australia from whom he is separated. As such, Mr Ali is incapable of marrying the applicant under Australian law. The applicant is therefore not in a ‘married’ relationship with Mr Ali, and cannot lawfully meet the definition of ‘spouse’ under

section 5F of the Act. At best, the applicant and Mr Ali may claim to now be in a de facto relationship.

Are the parties in a de facto relationship?

1. ‘De facto partner' is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others; the relationship is genuine and continuing; the couple live together, or do not live separately and apart on a permanent basis; and the couple are not related by family: s.5CB(2).

1. In this case Mr Rashid Ali is the uncle of the applicant, by marriage. This falls outside the definition of ‘related by family’ in s.5CB(4) of the Act, such that the applicant remains entitled to have her claimed de facto partner status assessed further under s.5CB, in order to determine her eligibility for a Subclass 820 visa. Regulation 2.03A then provides for additional visa criteria that are not part of the 5CB(2) definition, that apply where a person claims to be in a de facto relationship for the purposes of a visa application. The additional criteria are:

·The parties are both at least 18 years of age; and

·The applicant must have been in the de facto relationship for at least 12 months immediately prior to making the visa application, unless compelling and compassionate circumstances for the grant of the visa exist.

1. In forming an opinion as to whether the applicant and Mr Rashid Ali are in a de facto relationship, consideration must be given to all of the circumstances of their relationship. This includes evidence of the financial and social aspects of the relationship; the nature of the parties’ household, and their commitment to one another as set out in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions, which must be answered: He v MIBP [2017] FCAFC 206.

1. In relation to the various matters specified in r.1.09A(3)(a), (b), (c) and (d) and on the basis of the documentary evidence submitted by the applicant and oral testimony received before the Tribunal from each of Alumeci Kolora and Rashid Ali, the Tribunal finds as follows:

(a)     Financial aspects of the relationship –

The applicant owns no assets and has no income in any form and is entirely financially dependent on Mr Ali. Mr Ali is medically unfit for work and has not worked since about 2016. Mr Ali subsists on welfare payments, in the form of carer payments together with some supplementary welfare payments. The applicant says that their motor vehicle is registered in their joint names, however the applicant is unaware of either the make or model of that car, and she does not ever drive it, as she does not have a licence. The applicant and Mr Ali also have a bank account in joint names, yet that account is operated only by Mr Ali, who controls all withdrawals from that account. Some household bills are in joint names, yet these are also paid solely by Mr Ali. The house where they reside at [address] is owned by Mr Ali. The Tribunal further notes the existence of recent power bills for the [specified] house in the joint names of Mr Ali and Mrs Shabnam Ali, despite the applicant and Mr Ali claiming to have married on 21 August 2016 and having resided together in the [specified] home since that date.

On the evidence before it the Tribunal concludes that there has been no financial convergence between the Applicant and her sponsor and the available financial

evidence does not support a conclusion that the applicant and Mr Ali are now in a genuine de facto relationship.

(b)     Nature of the household –

The applicant and Mr Ali reside together in Mr Ali’s house at [address] and together have an infant daughter. According to the evidence, the applicant does all of the housework, yet Mr Ali claims to assist with childcare particularly in order to enable the applicant to do the housework uninterrupted by her daughter. Mr Ali is now 65 years of age and is in poor health. There appear to be other adult children of Mr Ali with schizophrenia who also live in the household. Mr Ali informed the Tribunal in his evidence that, as he is now old and unwell, he needs somebody to look after him. When the applicant and Mr Ali venture outside the home Mr Ali does the driving. When they go shopping this is usually done together. The Tribunal concludes that the evidence received before it going to the nature of the household does not support a conclusion that the applicant and Mr Ali are in a genuine de facto relationship.

(c)     Social aspects of the relationship

The applicant says that she was raised as a Christian in Fiji but has since converted to Islam, immediately upon her arrival in Australia. The applicant and Mr Ali underwent an Islamic marriage ceremony in Brisbane on 21 August 2016, which was the same day as the applicant’s first arrival in Australia. This ceremony took place despite the fact of Mr Ali still being married to his estranged wife Mrs Shabnam Ali.

The applicant says that her wedding was attended by 8 or 10 people, none of whom were known by her prior to that day. Now, the applicant and Mr Ali attend the Mosque together most Fridays as well as accompany one another and their daughter during most outings outside the home. The applicant has provided a statutory declaration from the Imam whom married the applicant and her sponsor, Imam Mohammed Taub, dated 14 October 2019. Although the declarant states that the applicant and Mr Ali are married in an Islamic sense, the Tribunal is not prepared to attach any weight to Imam Taub stating that the relationship between the applicant and Mr Ali is genuine, on the basis that they attend the Mosque together and attend Muslim community events together. A similar undated reference has been provided by Imam Mohammed Akram Buksh from the Slacks Creek Mosque, who similarly says that the applicant and Mr Ali are frequently seen together at the Mosque and community events. Again, little weight is attached by the Tribunal to that evidence given that the financial and living circumstances of the applicant appear to compel the applicant remaining with Mr Ali.

(d)     Nature of persons’ commitment to each other

The applicant was born in Fiji on 12 May 1994 in impoverished circumstances. The applicant was uncertain during her oral evidence before the Tribunal as to the extent of her formal education, recalling that she may have been educated until about grade six, and informing the Tribunal that now she can only ‘read and write a little bit’.

Since leaving school, the applicant has only worked as a household domestic in Fiji. This appears to have been with members of her extended family, in exchange for food and board. The applicant has a son, aged about 4 years, who still resides in Fiji with an auntie. The applicant is unable to recall who fathered her son, but recalls that she was pregnant with her son at the time when she first met Mr Ali in Fiji.

Mr Rashid Ali was born in Fiji and arrived in Australia in about 1988. Mr Ali says that in Australia he was a labourer and tree lopper by occupation, yet by about 2015 was

no longer able to work, in consequence of his suffering from various physical and mental health conditions. By that stage Mr Ali had also become estranged and separated from his wife Mrs Shabnam Ali, who suffers from poorly regulated schizophrenia. Mr Ali and Mrs Shabnam Ali have never divorced. On 4 October 2015 whilst in Fiji visiting relatives, Mr Ali had gone to visit a friend of his father, where he observed a young pregnant girl, Alumeci Kolora, working as a housemaid. Mr Ali was told by his father’s friend - and Mr Ali subsequently relayed this information to the Tribunal - that the applicant had been raised in that household on account of her “having no parents”. Mr Ali says that he became friendly with the applicant before returning to Australia on 13 October 2015. Mr Ali says that they remained in contact with one another and that he returned to Fiji for a further nine days, in November 2015. Mr Ali again returned to Fiji in April 2016 for about 12 days. Mr Ali then returned to Fiji in August 2016 for about 3 weeks, before accompanying the applicant back to Australia, arriving on 21 August 2016.

Other than what has been asserted by Mr Ali in his oral testimony before the Tribunal, there is no satisfactory evidence of contact and communication between the applicant and Mr Ali between 13 October 2015 and 21 August 2016. There is also no evidence before the Tribunal regarding the exclusivity of their relationship prior to 21 August 2016.

On the same day as their arrival in Australia (21 August 2016), the applicant and Mr Ali went to a Mosque and underwent an Islamic ceremony. Both Mr Ali and the applicant said that this was necessary in order for them to be able to live together as man and wife. The applicant and Mr Ali have since lived together continuously since that time. The Applicant gave birth to a daughter, fathered by Mr Ali, on 31 March 2019. Mr Ali now receives parenting allowance on account of his daughter.

When questioned by the Tribunal neither of the applicant nor Mr Ali could recall when they became engaged to be married, yet each of them could recall having first met on 4 October 2015. This is somewhat surprising, given that their documentary evidence before the Tribunal includes an undated letter (with no contact details) from a Senior Pastor Vilikesa Tubuitamana, who states that he conducted an engagement ceremony in Fiji between the applicant and Mr Ali on 17 August 2016. Given that this engagement ceremony is said to have taken place only four days prior to the applicant’s departure from Fiji and arrival in Australia, it might be expected that this event could have been easily recalled by the Applicant and by Mr Ali. No weight is attached to the evidence from Pastor Tubuitamana, given that his statement is completely untested; the date of the event he describes could not be recalled by the applicant, and no contact details for Pastor Tubuitamana have been provided.

In his evidence before the Tribunal Mr Ali also said that he was initially attracted to the applicant because he realised that he was old and unwell, and needed somebody to help look after him, and to take care of his house.

Both the applicant and Mr Ali expressed to the Tribunal that they are in love with one another.

The applicant and Mr Ali have lived together continuously since 21 August 2016 and now claim to provide one another with companionship and emotional support, and say that they each regard their relationship as a permanent one. The Tribunal has not been able to form a concluded view regarding the bone fides of those assertions.

Are the additional criteria for a de facto relationship met?

1. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were both at least 18 years old.

1. The applicant must also have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: r.2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds, or is applying for a permanent humanitarian visa.

1. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds, or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement. In light of the matters traversed in paragraph 12 (above) the Tribunal is not satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.

1. Therefore, the issue before the Tribunal is whether the visa applicant can establish compelling and compassionate circumstances for the grant of the visa: r.2.03A(3). The expression ‘compelling and compassionate circumstances for the grant of the visa’ is not defined in the legislation. Having regard to the ordinary meaning of the words, ‘compassionate’ suggests ‘circumstances that invoke sympathy or pity’. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’ and, therefore, convincing: see Paduano v MIMIA [2005] FCA 211. No compelling or compassionate circumstances have been identified to the Tribunal by either the Applicant or by Mr Ali as to why the 12 month requirement should be overlooked in their case, and none are discernible on the evidence. Accordingly, the Tribunal is not satisfied that there are compelling and compassionate circumstances for the grant of the visa.

1. For these reasons the Tribunal is not satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

1. In circumstances wherein the applicant does not satisfy the ‘time of application’ criteria it is unnecessary for the Tribunal to make a determination regarding the ‘time of decision’ criteria, in cl. 820.221.

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

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Andrew McLean Williams Member

ATTACHMENT - Extract from Migration Regulations 1994

1.09A     De facto partner and de facto relationship

(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.

Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.

1. 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 in a de facto relationship with 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).