Mensah (Migration)

[2022] AATA 3444

Mensah (Migration) [2022] AATA 3444 (15 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ronald Mensah

REPRESENTATIVE:  Mr Tariq Ibrahim (MARN: 0743122)

CASE NUMBER:  1826280

HOME AFFAIRS REFERENCE(S):          BCC2016/1334686

MEMBER:Cheryl Cartwright

DATE:15 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2) of Schedule 2 to the Regulations

·cl 820.221(1) of Schedule 2 to the Regulations

Statement made on 15 September 2022 at 10:44am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – money transfers – applicant’s support for the sponsor’s son – applicant acceptance by the sponsor’s family – emotional support – decision under review remitted      

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206

Jayasinghe v MIMA [2006] FCA 1700

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 April 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) of the Migration Act because there was insufficient evidence to demonstrate the visa applicant was the spouse or de facto partner of the sponsor as defined under s5F and s5CB of the Migration Act.

4. The applicant appeared before the Tribunal on 8 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Lorena Romero, the son of the sponsor, Mr Evan Smirneos, a friend of the applicant, Mr Kwame Tosuma, the sister of the sponsor, Ms Rossana Romero, and an aunt of the sponsor, Ms Ana Rufatt-Ruiz.

5. The applicant was represented in relation to the review.

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

   Consideration of claims and evidence

7. The issue in the present case is whether, at the time of application on 1 April 2016 the applicant and the sponsor were spouses for the purposes of the Act.

8. As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

   Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

9. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

10. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 (a time of decision criterion) as well.

11. Clause 820.221(1)(a) provides:

    (1)  In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:

    (a)continues to meet the requirements of the applicable subclause[.]

    Background

12. The applicant was born in Ghana on 26 May 1983 and travelled to Australia on a Temporary Work (Entertainment) (subclass 420) visa five times before lodging a Partner (subclass 820/801) visa on 1 April 2016. The applicant performs with African dance groups.

13. The sponsor, born 2 May 1965 in Santiago, Chile, is an Australian citizen. The certificate of Australian citizenship dated 11 December 1992 is on the Department’s file.

14. During 2015, late in the duration of his fourth visit to Australia the applicant met the sponsor at a dance troupe show. The parties dated that year and remained in touch when the applicant returned to Ghana when his visa expired. During their conversations when the applicant was in Ghana in 2015 the parties discussed marriage.

15. The applicant returned to Australia for the fifth time on a Temporary Work (Entertainment) (subclass 420) visa on 2 September 2015 and the sponsor introduced him to her family and her son before the applicant moved into the sponsor’s home as her de facto partner in November 2015.

16. The parties married on 7 February 2016 and the applicant lodged a Partner (subclass 820/801) visa application on 1 April 2016.

    Whether the parties are in a spouse or de facto relationship

17. Clauses 820.211(2)(a) and 820.221 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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.  

18. ‘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). 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 parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

19. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married at Brighton East, Victoria, on 7 February 2016. A copy of the marriage certificate is on the Department’s file. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s5F(2)(a).

    Are the other requirements for a spouse relationship met?

20. Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the person’s commitment to each other.

21. In considering these issues, the Tribunal has had regard to all the documents on the Department’s file and the Tribunal’s file.

    The financial aspects of the relationship

22. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship. The sponsor is the owner of the shared dwelling.

23. There is no evidence before the Tribunal that, at either at the time of application or at the time of this decision, the applicant and the sponsor jointly owned or own real estate or other major assets; that they had or have any joint liabilities; or that one person in the relationship owed or owes any legal obligation in respect of the other.

24. The parties’ main joint asset is a joint bank account. The joint account does not contain deposits of salaries or wages; the deposits are mainly of rounded amounts, such as $900 or $500, with similarly rounded withdrawals, as well as some payments for household requirements. The parties gave independent and consistent statements that the parties have individual accounts, and the joint account is used by them to transfer funds to and from each other’s personal accounts to assist with household or entertainment expenses.

25. The sponsor’s individual account contains Centrelink carer’s payments as well as salary deposits. The sponsor works as a medical research librarian. The applicant’s individual account contains payments from his various jobs as a kitchen hand, undertaking mail deliveries and for performance work. At the time of this decision, the applicant had started a new job at the Alfred Hospital with a company named Spotless, working in the food stores, checking food and packaging and delivering meals to hospital patients.

26. The parties provide regular funds to the applicant’s family in Ghana. The applicant has two sons in Ghana but has lost touch with the elder son and the funds are transferred to a family friend or to a family member and passed to the younger son and the applicant’s mother to help with living expenses. The parties provided independent and consistent evidence that these funds are contributed by the applicant, while the sponsor provided funds transfers in 2015 when the applicant was living in Ghana at that time and before they were married.

27. The applicant stated that he was very young when his first son was born and his mother took responsibility for care of the baby. He then left Ghana and moved to Taiwan where he began a new relationship and had a daughter. After he left Taiwan to return to Ghana with the intention of returning to Taiwan, his partner told him that she had met another man and the applicant did not return to Taiwan. This daughter in Taiwan is now 17 years old and does not receive funds from the applicant. His second son in Ghana, born 14 September 2011, lives with the son’s mother.

28. The Tribunal notes that, at the time of application, the parties provided little evidence of having pooled their financial resources, of having made significant joint purchases or that they shared day-to-day financial responsibilities. The Tribunal notes that, at the time of application, the parties had been married for almost two months, and had been living together for four months. The Tribunal places no weight on the matter of pooling financial resources at the time of application.

29. The Tribunal is satisfied that, at the time of this decision, the parties have pooled their financial resources, have a good understanding of each other’s financial situation, and share in the responsibilities of household expenses.

    The nature of the household

30. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

31. There is no evidence before the Tribunal that the applicant and the sponsor have any children together. The applicant has two sons in Ghana and a daughter in Taiwan from previous relationships. The sponsor has one son from a previous marriage and the son lives with the sponsor and applicant in the sponsor’s house.

32. The parties gave independent and consistent evidence that the applicant participates in the care of the sponsor’s son, who was 10 years old when the applicant first met him and who is now 18 years old.

33. The sponsor’s son gave evidence at the hearing that he receives support and guidance from the applicant. He helps to video the applicant’s dance performances and the applicant encourages him to focus on his schoolwork.

34. The sponsor gave evidence that the applicant has provided emotional support to her son. When her son was struggling with confidence the applicant would encourage him and when her son was concerned about walking to school alone, the applicant would walk with him to school.

35. The parties gave consistent evidence about the household chores. Most cooking and cleaning is undertaken by the applicant. The sponsor does not enjoy spicy African food and the applicant mainly cooks Western food but makes African food when the parties entertain friends at home.

36. The parties gave consistent evidence about the use of the three bedrooms and two bathrooms in the house.

37. The Tribunal notes that, at the time of application, the parties provided documents such as utility bills addressed to both parties and individually addressed letters. The Tribunal gives some weight to this evidence.

38. At the time of its decision, the Tribunal is satisfied that the evidence provided since the delegate’s decision on 24 August 2018, and the statements provided at the hearing on 8 September 2022, demonstrate that the parties have a joint household and share household responsibilities. The Tribunal gives weight to the evidence provided.

    The social aspects of the relationship  

39. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

40. At the time of application, the parties provided Facebook screenshots and photos taken with friends and family, as well as statutory declarations and support letters completed by third parties. The Tribunal gives some weight to the evidence provided at the time of application.

41. At the time of this decision, the parties provided further photographs taken with friends and family in the years up to and including 2022, as well as photographs taken when travelling.

42. The parties provided independent and consistent statements at the hearing that they had travelled to various cities and towns in Victoria and New South Wales, including details of a visit to Sydney when the applicant had a performance there. The parties also provided independent and consistent evidence that they attend an M&M concert at the MCG in February 2019.

43. Ms Rossana Romero, the sister of the sponsor, stated at the hearing that the applicant is always willing to assist the family and helps her at home from time to time as she lives alone. Ms Romero stated that the applicant has helped her mother – the sponsor’s mother – as her health has deteriorated. Ms Romero stated that her sister, the sponsor, is in a loving and committed spousal relationship with the applicant. The Tribunal gives great weight to this evidence.

44. Ms Ana Rufatt-Ruiz, the aunt of the sponsor, stated at the hearing that the applicant is “like a son” to her. As the sponsor’s mother’s health had deteriorated, Ms Rufatt-Ruiz had stepped up her support of and engagement with the sponsor and told the hearing that the applicant had become an important part of the sponsor’s life as a companion and partner. Ms Rufatt-Ruiz stated that the applicant’s friendship with her nephew, the sponsor’s son, was important support for the teenager. The Tribunal gives great weight to this evidence.

45. Mr Kwame Tosuma, a friend of the applicant, told the hearing that he had known the applicant in Ghana and they performed in the African dance group together. He described the parties as an “amazing” couple but provided little further evidence. He had not seen the parties in two years. The Tribunal gives no weight to this evidence.

46. The Tribunal is satisfied that, at the time of this decision, the applicant and sponsor present themselves to friends and family as being in a committed partner relationship and are regarded by others as such.

    The nature of the persons’ commitment to each other

47. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

48. Both the applicant and the sponsor gave independent and consistent statements to the hearing about the development of the relationship.

49. At the time of application, the parties provided written statements about their relationship and about the development of the relationship between the applicant and the sponsor’s son. The Tribunal accepts that, at the time of application, the parties had been married for two months and living together for four months. The Tribunal gives some weight to the statements provided at the time of application.

50. At the time of the Tribunal’s decision the parties provided evidence that they have lived together as a couple in a committed spousal relationship since 2015.

51. The applicant stated to the hearing that, he had been too young to ensure the success of his earlier relationships. He stated to the hearing that the sponsor has helped him to learn to read and he is very happy as part of her whole family.

52. The sponsor stated to the hearing that she has received emotional support from the applicant through the deterioration in her mother’s health, and assistance in dealing with her son’s autism.

53. The parties provided independent and consistent statements to the hearing that indicated they see the relationship as supportive and long term.

54. The Tribunal gives weight to the statements about the long-term commitment of the parties and is satisfied that they draw emotional support and companionship from each other.

    CONCLUSION

55. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s5F(2)(a) of the Act.

56. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, both at the time of application on 1 April 2016 and at the time of this decision, the applicant and the sponsor had and have a mutual commitment to a shared life as husband and wife to the exclusion of all others, had and have a genuine and continuing relationship, and lived and live together as required by s5F of the Act.

57. Given these findings, the Tribunal is satisfied that, at the time the visa application was made and at the time of this decision, the parties were and are in a spousal relationship.

    decision

58. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations

    ·cl 820.221(1) of Schedule 2 to the Regulations

    Cheryl Cartwright
    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).