MANYANG (Migration)

[2020] AATA 611

MANYANG (Migration) [2020] AATA 611 (2 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs TABISA YAR MALANG MANYANG

VISA APPLICANT:  Mr MICHAEL AYUEL KUEER MANYOK

CASE NUMBER:  1901197

DIBP REFERENCE(S):  BCC2018/1639564

MEMBER:Steven Griffiths

DATE:2 March 2020

PLACE OF DECISION:  Adelaide

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 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 02 March 2020 at 4:34pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Partner (Provisional)) – de facto partner – previously married and separated – long period without contact – financial, household and social aspects of relationship – nature of commitment – adverse information in delegate’s decision record – allegations of divorce and applicant’s threat to kill sponsor denied by parties – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 5F(2)(a), 65, 359AA

Migration Regulations 1994 (Cth), r 109A(3), Schedule 2, cl 309.211(2), 309.221

CASE
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 Immigration on 18 December 2018 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, Mr. Michael Ayuel Kueer Manyok, applied for the visa on 12 April 2018 on the basis of his relationship with his sponsor, the review applicant, Mrs. Tabisa Yar Malang Manyang. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) because the delegate was not satisfied the applicant was the de facto partner, as defined in s.5CB of the Act, of the sponsor.  

4. The sponsor appeared before the Tribunal on 16 January 2020 to give evidence, respond to questions and present arguments, with the visa applicant providing evidence by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages. The hearing was adjourned without completion of the evidence from the visa applicant and before consideration of oral evidence of another witness.

5. The Tribunal conducted a resumed hearing on 25 February 2020 with the sponsor and another witness, and the applicant by telephone, giving evidence, responding to questions and presenting arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages.   

6. The sponsor was represented by her registered migration agent, who attended the first hearing but was unable to attend the second due to ill-health.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has taken into consideration all the evidence in the Department of Immigration file, the Tribunal file including additional information provided by the applicants and the evidence from the Tribunal hearings.

   ISSUE

9. The issue in the present case is whether the applicant is the de facto partner, as defined in s.5CB of the Act, or the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGOUND OF THE EVIDENCE

10. Mr. Manyon was born in Bor, South Sudan, in 1980. His parents, born 1953 & 1953, are separated, with his father living in South Sudan and mother in Australia. He has 3 sisters and 3 brothers, born between 1975 and 1994 who live in South Africa, United States, South Sudan and Australia.

11. Mrs. Manyang was born in South Sudan in 1983. Her parents are deceased and she has 2 brothers still alive, born 1970 & 1972, with the elder living in Sudan and the younger in Australia. She married the visa applicant in 2007, has a son and daughter, born 2008 and 2010, and divorced when her husband left the family. She and the children arrived in Australia on a Global Special Humanitarian, subclass 202, visa on 24 August 2015 and all are Australian citizens by grant.

    BACKGROUND OF THE EVIDENCE

12. Since the Department made a decision the sponsor has provided further information to the Tribunal including:-

    Migration Agent statement

    Statutory Declaration by sponsor dated 24/10/18

    Optus records for sponsor dated 26/7/16 to 13/1/18

    Form 80 Character Assessment dated 22/7/17

    Sponsor visa application dated 2/8/17

    Money transfers – 21/4/18 $ 20, 31/5/18 $ 150, 26/6/18 $ 90, 6/7/18 $ 25, 16/7/18 $ 30, 27/7/18 $100 – total of 6 transfer of $ 415 between 21/4/18 and 27/7/18

    Sponsor Statutory Declaration, 20/1/20 and copy of Departmental notes including interview with Sponsor 5/6/14 as part of her Global Special Humanitarian subclass 202 visa

    Money Transfers – 13/2/19 $ 94.24, 18/3/19 $ 76.70, 28/12/19 $ 314.60, 20/1/20 $ 249.89 – total of $ 735.43 from 13/2/19 to 20/1/20

    80 pages of text messages and call register for 31 July 2019 to 19 January 2020 

    Is the sponsor an Australia citizen, an Australia permanent resident or an eligible New Zealand citizen?

13. 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. The Tribunal accepts the evidence of the sponsor being an Australian citizen by grant.  

    Are the parties in a spouse or de facto relationship?

14. ‘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).

15. 'De facto partner' is defined in 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).

16. In forming an opinion whether they are in a de facto relationship consideration must be given 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 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.

    Are the parties validly married?

17. At the time the visa application was made the sponsor provided evidence of being married to the sponsor from 2007, with the applicant leaving her and the children in October 2010, soon after the birth of the second child, with the sponsor providing oral evidence during an interview for the partner visa “to the effect that the applicant had divorced her” when he left the family in late 2010, with the Decision Record according this statement the impact as confirmation of an official divorce.

18. The Tribunal notes the visa application lodged in 12 April 2018 has the relationship status of the parties as being married.

19. The Tribunal notes the sponsor and applicant, as part of the oral and documented evidence to the Tribunal, have continually stated that they did not divorce and while not living together since late 2010 remain as husband and wife.   

20. The Tribunal has regard to the documented and oral evidence and determines the parties were married in September 2007 and at the time of the visa application and this decision they continue to be in a marriage valid for the purposes of the Act as required by s.5F(2)(a).

    ADVERSE INFORMATION

21. The Tribunal notes that during the first hearing, information from the sponsor and applicant contradicting the reported words of the applicant at the time of leaving the sponsor and children in November 2010 were raised as being Adverse Information, as required under the provisions of Section 359AA of the Migration Act 1958.

22. The Tribunal provided the parties and migration agent with a short adjournment, which was accepted, to discuss the matter. At the resumption, the sponsor confirmed she stood by her comments that the applicant did not threaten to kill her if she followed him when he left Kakuma Refugee Camp.

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (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 expense

23. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, no real estate or other major assets was or is jointly owned by the parties.  

24. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.

25. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.

26. The Tribunal notes the oral evidence of the sponsor that she works at a market garden located to the north of Adelaide, Australia.

27. The Tribunal notes the oral evidence of the applicant of joining the military in his homeland of South Sudan upon leaving his family in late 2010 as it was the only secure role he could find, defining the military as meaning that he was a prison officer, and continued in the role until late 2019 when he left after a lengthy period of being paid poorly and irregularly.

28. The Tribunal notes that with the applicant leaving his prison officer role in late 2019 that the oral evidence of the parties is that he is reliant on the financial support of the sponsor. 

29. The Tribunal accepts the documented and oral evidence of the parties of the sponsor providing financial support to the applicant with 30 money transfers from October 2015 to January 2020, totalling $ 3,254.14 Australian, to the applicant.

30. The Tribunal notes the oral evidence of the applicant that while he worked as a prison officer for approximately 9 years, he was unable to provide any financial support for his wife and children.

31. The Tribunal accepts the parties have lived apart since late 2010, initially in different countries and in different continents since August 2015, noting the value of money provided to the applicant by the sponsor is a significant amount of her income and discretionary financial resources.    

    Nature of the household aspects that must be considered include:-

    (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

32. The Tribunal accepts the documented and oral evidence from the parties of having 2 children, a son born in June 2008 and a daughter born in October 2010.

33. The Tribunal accepts the documented and oral evidence of the applicant leaving the family, who were residents of Kakuma Refugee Camp in Kenya, a week after the birth of the daughter.

34. The Tribunal accepts the oral evidence of the parties that for the period the sponsor lived with his family, within the confines of Kakuma Refugee Camp, between 2007 and 2010, he provided care and support for his children.  

35. The Tribunal accepts the oral evidence of the sponsor and support witness of the strong desire of the children to have their father living with them in Australia, confirming that while the sponsor has not seen his children since November 2010 he has established a strong emotional and support connection with the children over the 4 years and 6 months since speaking to them for the first time.

36. The Tribunal accepts the documented and oral evidence of the applicant and sponsor establishing contact in September 2015, shortly after the sponsor and children had arrived in Australia, with the applicant establishing a relationship with his children, being involved in decisions made impacting on the children and determines, at the time of the visa application and this decision, the sponsor has sole physical and financial responsibility for the care and support of the children while from an emotional and decision making view the parties have joint responsibility for the care and support of children.

37. The Tribunal accepts the documented and oral evidence of the applicant leaving his family in November 2010, out of frustration of living in the refugee camp and being unable to provide for his family, with the parties having no contact in any way until September 2015 after the sponsor and children arrived in Australia.

38. The Tribunal notes the documented and oral evidence of the sponsor of her attempts to travel to South Sudan to spend some time with her husband, but was unable to finance a trip and unable to find suitable care options for her children while they remained in Australia.

39. The Tribunal determines, at the time of the visa application and this decision, the parties have lived apart, and in different countries, since September 2010 and have not spent any time physically in the same place. 

40. The Tribunal accepts the oral evidence of the parties living apart since September 2010 and determines, at the time of the visa application and this decision, the parties have had no sharing of responsibility for housework since that time.   

    Social aspects of the relationship that must be considered include:-

    (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

41. The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, the parties represent themselves to other people as married.  

42. The Tribunal accepts the documented and oral evidence of family and friends of the parties and determines, at the time of application and this decision, the opinion of family, friends and acquaintances as being supportive of the marriage. 

43. The Tribunal accepts the documented and oral evidence of the contact between the parties since establishing contact in September 2015, and determines, at the time of application and this decision, the parties have a level of knowledge of what the other does.

44. The Tribunal accepts the oral evidence of the parties of their time together and determines, at the time of application and this decision, as they have lived apart since November 2010 they have no opportunity to plan and undertake joint social activities and attaches little weight to this issue.

    Nature of the commitment to each other that must be considered include:-

    (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.

45. The Tribunal accepts the evidence of the parties initially making contact in December 2005 at Kakuma Refugee Camp in Kenya, holding a customary wedding on 22 September 2007 and living together until separating in November 2010 when the applicant left his family in search of opportunities to provide for his family.

46. The Tribunal accepts the documented and oral evidence of the parties having no contact with each other between November 2010 and September 2015, following which they have been in regular and continuing contact by Facebook Messenger.

47. The Tribunal accepts the oral evidence of the sponsor that she was in regular contact with siblings of the applicant, who also lived in Kakuma Refugee Camp, and they had no knowledge of the applicant after he left his family in November 2010.

48. The Tribunal notes the evidence of the applicant that in the initial years of his working as a prison officer in South Sudan from some time in 2011 that he was unable to make contact with his wife, children or any other family member as the rules under which he was required to live to keep his employment demanded that he not be in contact with others.

49. The Tribunal questioned the applicant on this, and he continually referred to the unrest of 2013 and danger in the time approaching this to attempting to make contact, and the inability to have access to the necessary communication equipment for him to seek to make contact with his wife.

50. The Tribunal notes the oral evidence of the applicant, sponsor and witness of the importance Facebook Messenger has played in being able to re-establish contact with each other and that this technology was not available while the sponsor and children lived at Kakuma Refugee Camp and was not available to the applicant until 2015.

51. The Tribunal asked the applicant, who had referred to his Dinka culture requirement to be the provider and carer for his family, on how this was overridden by his stated workplace demand that he, as a prison officer, make no contact with others be made and he confirmed it was a legal requirement to follow these instructions and while he sought permission to make contact with his family, this was denied and he was forced to comply.  

52. The Tribunal notes the oral evidence of the applicant that he had no way of gaining access to a telephone number at Kakuma Refugee Camp that would allow him to speak to his wife and children.

53. The Tribunal accepts the documented and oral evidence of the parties of the issues they have dealt with, primarily the applicant having no contact with his family for approximately 5 years, and the support provided by each other in getting through this and other issues and determines, at the time of application and this decision, companionship and emotional support is provided by each of the parties to the other, acknowledging that this support is limited to electronic contact.

54. The Tribunal accepts the oral evidence of the support witness of the parties, who is a long term friend of the applicant, a regular visitor to the sponsor and children and a church priest, of the importance the father plays in the family unit, even while living in South Sudan, and the desire expressed to him by the sponsor and 2 children for their husband and father to be able to live in Australia with them.

55. The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, they re-established their relationship in September 2015, continue to have an ongoing commitment to each other and see the relationship and marriage as being for the long-term.

    Any other issues

56. The Tribunal notes the reference in the Decision Record of the visa application of “the sponsor declared that following the birth of the second child in 2010 the applicant divorced her and returned to South Sudan. The sponsor also claimed that the applicant had threatened to kill her, which she believed, were she to follow him to South Sudan”.

1. The Tribunal asked questions of the sponsor and applicant on this evidence, obtained as part of the Global Special Humanitarian subclass 202 visa upon which the sponsor was permitted to live in Australia, with the sponsor saying this statement was not true, and subsequently providing before the second hearing a Statutory Declaration confirming that, and the applicant stating that he had never made such a threat to his wife.

2. The Tribunal notes the sponsor, as part of her oral evidence, confirmed the death threat allegations were included in the Global Special Humanitarian visa, by her brother James Akoy Malang Manyang, resident of Australia, who completed the application form and provided it to her for signing.

3. The Tribunal notes the Statutory Declaration of the sponsor, provided to the Tribunal before the second hearing, includes the statement “I remember looking at a copy of the humanitarian visa application and noticed that my brother wrote that my husband had threatened my life if I followed him to Juba”.

4. The Tribunal notes the Statutory Declaration of the sponsor, provided to the Tribunal before the second hearing, includes the statement “I confirm that I was using a Dinka interpreter at the time and I told the interpreter ‘that my husband never threatened to kill me’. I believe the interpreter made the changes to my answer to suit the visa application”.

5. The Tribunal notes, in its scrutiny of the interview conducted in 2014 with the sponsor as part of her Global Special Humanitarian visa, that the then visa applicant and now sponsor indicated that if permitted to live in Australia and subsequently in contact with her husband again, that she would sponsor him to be able to come to Australia to enable the family to be together.  

6. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.

7. The Tribunal accepts that the parties met in December 2005, were married in November 2007 and lived together until November 2010, with no contact between the parties occurring from November 2010 to September 2015, from which time the relationship between the applicant, sponsor and children has been re-established, regular contact maintained and the sponsor has attempted to travel to be with her husband twice but been unable to afford it or identify suitable child care options, and do not live separately and apart on a permanent basis.  

8. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and the time of this decision.

9. Therefore the visa applicant meets cl.309.211 and cl.309.221.

10. The Tribunal considers the secondary applicant should be reconsidered in light of its decision on the primary applicant.  

11. 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

12. 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 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Steven Griffiths
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).