Manyon (Migration)

[2019] AATA 3713

Manyon (Migration) [2019] AATA 3713 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Amel Michael Manyon

VISA APPLICANTS:  Mr Tut Osman Pal Nyach
Mr Chuol Tut Osman Pal
Ms Nyawaragak Tut Osman Pal

CASE NUMBER:  1834517

DIBP REFERENCE(S):  BCC2018/1935292

MEMBER:Steven Griffiths

DATE:25 June 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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

1. Statement made on 25 June 2019 at 4:54pm

   CATCHWORDS

   MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – genuine spousal relationship – marriage certificate – photographic and oral evidence – financial support – decision under review remitted

   LEGISLATION

   Migration Act 1958 (Cth), ss 5F, 65
   Migration Regulations 1994 (Cth), Schedule 2 cls 309.211, 309.221

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 November 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

3. The first named visa applicant, Mr. Tut Osman Nyach, applied for the visa on 3 May 2018 on the basis of his relationship with sponsor, Ms. Amel Michael Manyon. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, who are applicants for the visa need satisfy only the secondary criteria.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied that the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor.  

5. The sponsor appeared before the Tribunal on 14 June 2019 to give evidence and respond to questions. The Tribunal also received oral evidence from the visa applicant by telephone from South Sudan. The hearing was conducted with the assistance of an interpreter, who attended by telephone.  

6. The review applicant was represented by her registered migration agent.

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 and Border Security file, additional information provided to the Tribunal and evidence from the Tribunal hearing.

   ISSUE

9. The issue is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGROUND ON THE EVIDENCE

10. Mr. Osman was born at Malakal, South Sudan in 1971. His parents are separated, with his father, born 1935, and mother, born 1945, both living in South Sudan. He was married to Rasha John Jeek, born 1978, on 1/6/04 and divorced 17/6/12 due to cultural issues. He has two children, a daughter born 8/6/06 and a son, born 12/11/09, who are secondary visa applicants.

11. Ms. Manyon was born in South Sudan in 1966. Her father is deceased, with her mother, born 1945, living in Uganda. She was married to James Tear, born 1958, on 5/8/86, separated in 2015 and he died on 5/8/16. She has five children, two sons and three daughters, born 87, 89, 91, 96 and 2000. She came to Australia on 08/12/02 and she and her children are Australian citizens.

    ADDITIONAL INFORMATION   

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

    Call register February to April 2018

    Photos – wedding and social

    Dept Immigration file obtained under FOI

    Statement by friend of visa applicant

    Statement by daughter of sponsor

    Statutory Declaration by sponsor

    Statement by Pastor in Sudan

    Statement by Elder in church in Sudan

    Relationship statement by visa applicant dated 29/5/19

    Update Form 888 by friend of sponsor

    Call register 30/10/18 to 27/5/19

    Statement by sponsor on education of two kids in Adelaide

    Form 888 by daughter of sponsor

    Form 888 by son of sponsor

    Is the sponsor an eligible Australian citizen?

13. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal has regard to a certificate of Australian citizenship for the sponsor and finds the sponsor to be an Australian citizen.  

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

    Are the parties validly married?

16. At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with a Marriage Certificate from the Presbyterian Church of Sudan as evidence of their marriage on 2/2/18.

17. The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).

    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

18. The Tribunal determines, from the evidence provided, that the parties at the time of application and this decision did not have any joint ownership of real estate or other major assets.

19. The Tribunal determines, from the evidence provided, that the parties at the time of application and this decision did not have any joint liabilities.

20. The Tribunal determines, from the evidence provided, that the parties at the time of application and this decision did not owe any legal obligation in respect of the other party.

21. The sponsor works as a Uniting Church Pastor in Adelaide, Australia, with the youngest (aged 19) of her five children living with her.

22. The visa applicant works as a teacher when provided with the opportunity, undertaking other jobs when necessary and rents a home in South Sudan where he lives with his two children and adult cousin. 

23. The sponsor provided evidence, which the Tribunal accepts, that she sends approximately $200 per month to the visa applicant to assist with paying for food, rent and child education expenses. The Tribunal accepts this as pooling of financial resources as the support from the sponsor assists with the major financial commitments of the visa applicant.

24. The Tribunal acknowledges that the parties live in different countries and find that they do not share day-to-day expenses and gives this little weight, as the Tribunal recognises the monthly financial support the sponsor has provided to the visa applicant to assist with his household expenses.   

    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

25. The Tribunal accepts the oral evidence of the parties that for the time the sponsor has been in South Sudan since the wedding, examples of roles undertaken by the sponsor were provided and the parties have joint responsibility for the care and support of children.

26. The Tribunal accepts that the monthly financial support from the sponsor to the visa applicant is used to assist with the care and support needs of the children.

27. The Tribunal accepts the oral evidence of the parties that they have discussed education opportunities in Australia for the children of the visa applicant as a demonstration of joint responsibility for the care and support of the children.

28. The Tribunal accepts that since the marriage in February 2018 the sponsor has lived with the visa applicant and family for 90 days over three trips to South Sudan.

29. The Tribunal accepts the oral evidence, confirmed independently by the parties, that in Australia the visa applicant and children will live in the home of the sponsor.

30. The Tribunal accepts the oral evidence, confirmed independently by the parties, of the shared household responsibilities during their time spent together in South Sudan   

31. The Tribunal accepts that the parties live in different countries and do not have a full-time household, and gives this little weight, as the Tribunal recognises the parties have lived together for 90 days.  

    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

32. The Tribunal accepts the oral evidence, confirmed by the parties independently, of representing themselves to other people as being married to each other.

33. The Tribunal accepts the photographic and oral evidence, confirmed by the parties independently, of planning and undertaking joint social activities when in South Sudan.

34. The Tribunal accepts the photographic and oral evidence, confirmed by the parties independently, of the importance Church and religion plays in their lives and the disclosure by the parties to the congregation in South Sudan and Australia that they are married.

35. The Tribunal accepts the statements from friends supporting the relationship and marriage.   

36. The Tribunal determines that within the limits of separation and communication and at the time of application and this decision, the parties are in daily contact with each other, have a spousal relationship and have a complete knowledge of what the other does every day and speak to the children of the other party regularly.

    Nature of the commitment to each other areas 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.

37. The Tribunal accepts the evidence of the parties that they have known each other since August 2015, with the relationship initially based on the support of the visa applicant to the sponsor at a difficult time, developing into a relationship for which a custom based approach was made to the sponsor’s family in April 2017 seeking an opportunity for them to marry, the couple becoming engaged and marrying in February 2018.

38. The Tribunal accepts that the parties are in daily contact with each other and provide companionship and emotional support to each other. 

39. The Tribunal accepts the oral evidence of the sponsor that she is in love, wants to spend the rest of her life with the visa applicant and children and as an indication of that commitment has travelled from Australia to South Sudan three times since marrying in February 2018.

40. The Tribunal accepts the evidence of the parties, confirmed independently, that they believe they will be together forever and see the relationship as being long-term.

    Other circumstances of the relationship

41. The Tribunal accepts from the evidence provided that first husband of the sponsor, from whom she was separated, died in August 2016.

42. The Tribunal accepts from the evidence provided that the visa applicant was divorced his first wife in June 2012.  

43. The Tribunal considered all the evidence about the circumstances of the parties and determined that the evidence supports a finding that, at the time of application and this decision, the parties have 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, continuing and long term.

44. The Tribunal accepts that the parties have been in a committed relationship since early 2017, engaged and married in February 2018 and do not live separately and apart on a permanent basis.

45. 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 this decision.

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

47. The Tribunal considers that the secondary applicants should be reconsidered in light of its finding on the primary visa applicant.  

48. 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

49. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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

    1.15ASpouse

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

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).