Menji (Migration)

[2018] AATA 1766

Menji (Migration) [2018] AATA 1766 (7 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ashenafi Tatek MENJI

VISA APPLICANT:  Ms Pushpa Mary Menji SIVARAJ

CASE NUMBER:  1613643

DIBP REFERENCE(S):  OSF2015/039542

MEMBER:Shane Lucas

DATE:7 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 07 May 2018 at 10:07am

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Spouse of sponsor – Marriage certificate – Irregular money transfers – Travel overseas with friends – Email communications – Regularity of communication – Inconsistent evidence

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15A, Schedule 2 cls 309.211, 309.221, 309.223

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 14 July 2016 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 is a Sri Lankan national born on 29 August 1984. She applied for the visa on 21 July 2015 on the basis of her relationship with her sponsor (“the review applicant”). 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. Relevant to this matter, the primary criteria include cls.309.211, 309.221 and 309.223.

3. The delegate considered that the information and evidence submitted in support of the application was not sufficient to demonstrate that the visa applicant satisfied the definition of spouse under s.5F of the Act.

4. The review applicant seeks review of the delegate’s decision.

5. The review applicant appeared before the Tribunal on 26 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

6. The applicant was not represented in relation to the review by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues in the present case are whether - at the time of application - the visa applicant was the sponsor’s spouse for the purposes of the Act (cl.309.211); whether at the time of decision, the visa applicant continues to meet the requirements of cl.309.211 (cl.309.221); and whether at the time of decision, the visa applicant continues to be the spouse of the sponsor (cl.309.223).

   Relevant law

9. ‘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 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)]. In forming an opinion about these matters, regard must be had to all the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the parties’ household, and their commitment to each other as set out in r.1.15A(3).

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a spousal relationship. The applicants provided a Marriage Certificate (with certified translation) showing the marriage was made on 26 February 2014 at Ratmalana, a suburb of Colombo, Sri Lanka. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied on the evidence that the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are other relevant requirements met?

11. 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 visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case, the visa applicant claims to be the spouse of the review applicant. The review applicant was born in St Albans, Victoria on 23 April 1984 and acquired Australian citizenship by birth. Accordingly, the requirements of cl.300.211(2) are met.

    Are the other requirements for a spousal relationship met?

12. The applicants provided documentation and oral evidence to the Tribunal that was not available to the delegate. This information has been considered in making this decision.

    Financial aspects of the relationship

13. The applicants submitted documentation and gave oral evidence regarding the financial aspects of the relationship. The documentary evidence provided relates to an irregular series of money transfers from the review applicant’s mother to the visa applicant between 28 July 2016 and 24 November 2017. The evidence comprises transaction records from the visa applicant’s account with a branch of the Commercial Bank of Ceylon, located at Warakapola in Kegalle District. The transactions record transfers for amounts ranging from LKR 21,508 (5 September 2016) to LKR 510,860 (24 November 2017), and total LKR 866,080 (approximately AUD 7275).

14. In oral evidence, the review applicant estimated that he had provided the visa applicant with approximately AUD 3000 in the four years since their marriage in February 2014. By contrast, the visa applicant gave oral evidence in which she estimated that she had received approximately LKR 100,000 (approximately AUD 840) from the review applicant, transferred to her account by his mother. The variance between the moneys documented by the transactions, and the differing approximations of financial support provided by the parties raises concerns as to the intent and purpose of the transfers. On the basis of the evidence, the Tribunal finds that these money transfers do not demonstrate that the parties have pooled their financial resources in a substantive way. 

15. In oral evidence, the review applicant confirmed that the parties do not have a joint bank account nor have they taken steps to pool their financial resources for the purposes of day-to-day household expenses or major financial commitments. Notwithstanding the money transfers mentioned above, the Tribunal found no evidence that the couple share their day-to-day household expenses or pool their financial resources. The Tribunal also found no evidence that the couple have committed to joint ownership of real estate or other major assets, or that they have assumed any joint liabilities. The Tribunal also found no evidence that either party owes any legal obligation in respect of the other.

    Nature of the household

16. The Tribunal received evidence that since their marriage in February 2014, the sponsor and the visa applicant have lived apart in Australia and Sri Lanka respectively. Prior to their marriage, the couple spent time together in Sri Lanka between January and March 2012 during which time the review applicant lived primarily at a guest house in Colombo. In the four weeks the review applicant was in Sri Lanka at the time of the couple’s wedding in February 2014, he divided his time between a guest house and the visa applicant’s family home, being also the home of his aunt (the visa applicant’s mother) as the parties are first cousins.

17. When asked by the Tribunal why he has not returned to Sri Lanka since February 2014, the sponsor stated that he initially had to return to his university studies in Australia. The Tribunal questioned the review applicant about an overseas trip he undertook between December 2015 and January 2016. The review applicant stated that he had travelled to the Philippines on a holiday with friends at this time. When asked why he did not travel to Sri Lanka to visit the visa applicant at this time, the review applicant stated that he is still young and wanted to have fun.

18. On consideration of the evidence, the Tribunal found no evidence attesting to the living arrangements of the persons; no evidence of the sharing of responsibility for housework; and no evidence of joint responsibility for the care and support of children. The Tribunal finds that the couple have not lived together for any substantive period of time or made any efforts to establish a joint household. The Tribunal acknowledges the constraints that living in separate countries places upon a couple seeking to establish a joint household. However, in considering whether the parties are in a genuine and continuing spousal relationship, the Tribunal gives significant weight to the review applicant’s decision to travel overseas with friends in December 2015 rather than visit the visa applicant in her home country.

    Social aspects of the relationship

19. As indicated above, the parties are first cousins and hence are well-known to each other’s families. The applicants provided photographic evidence of their wedding in February 2014 showing the parties signing a marriage book and undertaking a ceremony in the presence of family members. The Tribunal was also provided with statutory declarations from four persons (including the review applicant’s father) affirming that the relationship between the couple is genuine and continuing, and is acknowledged as a spousal relationship by members of the parties’ family and friendship network. The Tribunal notes that no written statements or oral evidence was provided to the Tribunal by the review applicant’s mother (being also the visa applicant’s aunt) or other friends in Australia. In oral evidence, the review applicant stated that he does not talk to friends in Australia about his relationship with the visa applicant as he does not reveal personal information to people outside his family.

20. On consideration of the evidence, the Tribunal finds that the couple represent themselves to their families as being married to each other; however there is limited evidence that might go to the opinion of the relationship held by other third parties. Hence, the Tribunal finds that the couple is not regarded as being in a genuine and continuing spousal relationship in the opinion of friends and acquaintances. The Tribunal found no evidence that the couple plan and undertake joint social activities, other than their wedding in February 2014.

    Nature of the person’s commitment to each other

21. The couple claim to have met as children when the review applicant visited Sri Lanka with his mother in 1998. However, the parties claim their spousal relationship commenced in 2012 when the review applicant again travelled to Sri Lanka to visit his extended family. The sponsor travelled again to Sri Lanka for some four weeks in February 2014, during which time the couple agreed to marry. The marriage was then performed on 26 February 2014. The review applicant departed Sri Lanka two days later and has not returned.

22. In oral evidence, the review applicant claimed that the couple were not physically intimate on the night of their wedding; however the visa applicant contradicted this account in her oral evidence, stating that the couple did have sexual relations for the first time on their wedding night. When the Tribunal asked the review applicant to comment on this inconsistency, he stated that the visa applicant was simply telling the Tribunal what she assumed the Tribunal would want to hear. This raises significant concerns as to the credibility of the visa applicant.

23. The Tribunal was provided with documentation demonstrating the parties’ ongoing communication via email throughout 2014 and 2015. On examination of this evidence, it is noted that the majority of these exchanges are very brief (one or two lines) and many pertain to the progress of the visa application and the gathering of supporting documentation. The Tribunal was also provided with a birthday card and a Valentine’s Day card purportedly sent to the review applicant by the visa applicant. These cards contain simple messages of affection and do not attest to a genuine and continuing spousal relationship between the parties.  

24. In oral evidence, the review applicant stated that the parties speak to each other by telephone approximately every second day; in her oral evidence, the visa applicant claimed that the parties speak approximately once a week. Both parties indicated that they talk about their daily lives, family members, and other prosaic matters. The review applicant also advised the Tribunal that he has had some mental health issues in recent years, but stated that he does not share this information with the visa applicant in their conversations as he does not believe she would understand “the problems of another world”. The Tribunal received no documentation addressing the state of the review applicant’s mental or physical health.

25. On the basis of the evidence, the Tribunal does not accept that the couple have lived together in a genuine and continuing spousal relationship for any period. The Tribunal does accept that the couple are in regular communication, though it is noted that the parties gave inconsistent accounts of the regularity of this communication. It is also noted that the email communications are brief and pertain at least in part to the status of the visa application. The Tribunal finds that the parties do not draw a degree of companionship and emotional support from each other.

26. In expressing his view of the long term nature of the relationship, the sponsor indicated that if the visa application was not successful, he would explore dual citizenship with Sri Lanka or other avenues to ensure the couple can be together. If the application was successful, the review applicant indicated that the couple would live initially at his parents’ home while they saved money to purchase a home of their own. In oral evidence, the visa applicant stated that she hoped the Tribunal would make a favourable decision on her visa application. On consideration of the evidence, the Tribunal finds that the persons do not see the relationship as a long term spousal relationship or that the couple has a mutual commitment to a shared life together to the exclusion of others.

27. Having regard to all the circumstances of the relationship, the Tribunal is not satisfied that when the application was made and at the time of this decision, the applicant and sponsor demonstrated a mutual commitment to a shared life as husband and wife to the exclusion of others. The Tribunal is not satisfied that their relationship is genuine and continuing. The Tribunal is not satisfied that the visa applicant and the review applicant live together, or are not living separately and apart on a permanent basis. The Tribunal is not satisfied that the parties are in a spousal relationship.

28. On the basis of the above, the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made, and at the time of this decision.

29. Therefore the visa applicant does meet cls.309.211, 309.221 and 309.223.

    Conclusion

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

    DECISION

31. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Shane Lucas
    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).