Negash Segid (Migration)

[2023] AATA 956

Negash Segid (Migration) [2023] AATA 956 (15 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Msgana Negash Segid

VISA APPLICANT:  Mr Riesom Tekliya Sbahtu

REPRESENTATIVE:  Ms Marjory Johnston (MARN: 0320038)

CASE NUMBER:  1833963

DIBP REFERENCE(S):  BCC2017/4250390 OSF2017/053136

MEMBER:Christine Kannis

DATE:15 April 2023

PLACE OF DECISION:  Perth

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

Statement made on 15 April 2023 at 6:47am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in third country – limited evidence of financial, household and social aspects of relationship and nature of commitment while living in different countries – late provision of documentation and loss of right to hearing – some pooling of financial resources – parties’ and supporting statements not signed or translated or inconsistent – applicant an illegal immigrant in third country – sponsor’s separate travel to birth country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a), 65, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

CASES
Hasran v MIAC [2010] FCAFC 40
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 3 October 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 applied for the visa on 8 November 2017 on the basis of his relationship with his 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. 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 meet cl 309.211(2) because the delegate was not satisfied that his relationship with the review applicant met the definition of spouse under the Act.

4. A copy of the Decision Record was submitted to the Tribunal by the review applicant for the purposes of the review.

5. On 3 February 2023, the Tribunal wrote to the review applicant pursuant to s 359(2) of the Act, inviting her to provide evidence of her relationship with the visa applicant at the time of application and time of decision. The invitation advised that if the information was not provided in writing by 17 February 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and he would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant did not provide the information within the prescribed period and no request for an extension of time was received. In these circumstances, s 359C of the Act applies, and pursuant to s 360(3) of the Act, the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. On 20 February 2023, the Tribunal advised the review applicant that she had lost her entitlement to appear before the Tribunal. She was also advised that the Tribunal had decided to allow her additional time to provide any further information, failing which it would make a decision based on the information available.

7. On 6 and 16 March 2023, the review applicant provided documentation which included but was not limited to bank statements, written statements, a statutory declaration and evidence of communication.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the relationship between the visa applicant and the review applicant meets the definition of ‘spouse’ in s 5F of the Act.

11. Section 5F of the Act 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 husband and wife 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 as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the household and the persons’ 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.

12. 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.   

    Are the parties validly married?

13. A Marriage Certificate showing the parties were married on 22 August 2016 in Israel was provided. On the basis of the written evidence before it, and in the absence of any evidence to the contrary, the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s 5F(2)(a). 

    Background

14. The review applicant is an Australian citizen.

15. The parties claim to have known each other in Eritrea during the period 2001 to 2003 and to have reconnected on Facebook in 2016 and after a few months the visa applicant proposed marriage. The review applicant travelled to Israel on 6 August 2016 and they were married on 22 August 2016. The review applicant returned to Australia on 5 September 2016.

16. The visa applicant has four children from a previous relationship. The review applicant has one child (Linda) from a previous relationship.

17. The Tribunal considered the evidence against the reg 1.15A(3) factors.

    Are the other requirements for a spouse relationship met?

    Financial aspects

18. The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.

19. In written statements dated June 2019 and 12 March 2023 made by the visa applicant, he said:

    During our discussion about our wedding ceremony, Msgana was worrying about the expense and her traveling fee. I explained her that I was so happy when she agreed to be part of my life, therefore, every expense could be by myself. As my promise, I   money for aircraft ticket and others amount $3000. Here in Israel, I prepared the ceremony with more than $10,000 us dollars. But I did not consider this as expense

    because I am very lucky to construct a happy family and hug the best lady. During her stay in Israel, we traveled in different holly places of Israel. I bought for her gold, bracelets, and many gifts. I covered everything we used in our wedding and during our honeymoon. I have a small shop in Tel Aviv though I have some problems about my status. I can sustain my life and the life of my family when I arrived in Australia.

20. He also said because he is living in Israel as an illegal immigrant, he could not send and receive money via a bank. He said to transfer money to another country, he sent money to an Ethiopian citizen having a permanent residence in Israel or an Israeli Ethiopian citizen. He said with this assistance he sent money to the review applicant including  US $3,000 for her air ticket to Israel and other expenses.  

21. The visa applicant’s written statements dated June 2019 and 12 March 2023 were not signed or translated (if appropriate) and therefore the Tribunal gives this evidence minimal weight.

22. In a statutory declaration dated 13 March 2023, the review applicant said:

    Resom and I plan on buying a property together and have a bank account dedicated to that. We wanted to have a joint account but we were told that that’s not possible as he lives overseas. So the account is under my name but both of us contribute to it.

    ….

    Financially I'm doing pretty well right now because I work and I can financially support my family. Resom also has a job in Israel and can financially support himself without any help from me or anyone else. If he did need help I wouldn't think twice about helping him out and I know he wouldn't either.

23. Evidence of money transfers sent by the visa applicant in 2017 and 2020 was provided.

24. A Commonwealth bank statement in the review applicant’s name for the period 1 April 2021 to 1 March 2023 was provided. Five credit transactions were highlighted. One transfer in May 2021 was described as a cash deposit. Three transactions in 2022 were described as “Transfer from xx7727 Net Bank” and the remaining transfer in 2022 was described as a cash deposit. An email from the representative provided the following information in relation to the statement:

    Bank account statement from 2021 to 2023. This account is the account set up by Ms Segid as a separate home savings account for when her husband arrives in Australia. Highlighted amounts are those sent by her husband, living in Israel. Money is sent by way of Western Union, which Ms Segid then transfers to the home savings account. Mr Sbahtu runs a small stall in Israel so his income is insufficient to match that of his wife’s. The sums transferred represent a significant contribution by him.

25. There is no evidence that the parties share day‑to‑day household expenses, have joint significant assets or joint liabilities or that they owe any legal obligations to the other party, and the Tribunal so finds. There is evidence of some money transfers to the review applicant in 2017, 2020, 2021 and 2022. The Tribunal accepts that the visa applicant has sent money to the review applicant on a few occasions and finds that parties have pooled their financial resources insofar as they have both contributed to the Commonwealth bank account.  

26. The Tribunal accepts that the parties resided in different countries at the time of application and that they had not established joint financial arrangements. Accordingly, the Tribunal gives this factor minimal weight.

    Nature of the household

27. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

28. In written statements dated June 2019 and 12 March 2023 made by the visa applicant, he said during their honeymoon, they lived in Armon Hayarkon hotel before the review applicant departed on 5 September 2016.  The visa applicant’s written statements dated June 2019 and 12 March 2023 were not signed or translated (if appropriate) and therefore the Tribunal gives this evidence minimal weight.

29. In a written statement dated December 2020 made by the review applicant, and described as updated personal statement, the review applicant said she and the visa applicant stayed at Armon Hayarkon on their honeymoon. The Tribunal accepts the review applicant’s written statement and finds that the parties resided at a hotel together for one month in 2016.

30. In a statutory declaration dated 13 March 2023, the review applicant said:

    Resom and I do not live together. He lives in Israel and I live in Australia.

    ….

    We met face to face in Ben-Gurion. I stayed at Vi TAL hotel and then moved to his house the next day. We finally got married on the 22nd of August surrounded by

    friends and family. 

    …

    On our Honeymoon, we stayed at the Armon Hayarkon hotel.

    ….

    I departed for home in Australia on the 5th of September 05, 2016.  

    ……

    An example is last year I was very stressed out because I struggled with parenting Linda in her senior year of High School. She was stressed out with school and HSC exams and we just kept butting heads and although I tried to help her through this rough time she wasn’t responding positively to my effort. When I let Resom know about how I was having a hard time helping her, he told me not to worry about it. I found out later that he’d called Linda and gave fatherly advice and let her know how I was feeling about the situation. He comforted her and told her to not worry too much about always being the best.  

31. No evidence of any joint responsibility for care and support of children was provided. The Tribunal accepts that the visa applicant provided emotional support to Linda in 2022 as described in the review applicant’s statutory declaration.

32. No evidence was provided in relation to the parties’ responsibilities for household tasks.

33. Evidence that the review applicant travelled to Eritrea in early December 2022 and returned to Australia in early February 2023 was provided. Prior to making a decision, the Tribunal wrote to the representative and requested that the review applicant provide evidence of   where she lived during the absence and how she spent her time during the absence.  No information was provided in response to this request.

34. The Tribunal accepts that the parties resided in different countries at the time of application and continue to do so at the time of decision. Given this, the Tribunal gives this factor no weight.

    Social aspects of the relationship

35. The Tribunal considered the evidence in relation to the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.

36. In written statements dated June 2019 and 12 March 2023 made by the visa applicant, he said:

    On August 22, 2016, we celebrated our wedding ceremony with relatives and friends. During her stay with me, many relatives and friends reached us in our honeymoon.  
    ….
     She got good acceptance with my relatives. Negasi and Bereket are two of my cousins who have good contact with Msgana. They have a positive attitude on her and give me advice to construct a good family with her. They have good communication with Msgana with Facebook messenger. While she was in Israel, we traveled in different holly places, and we enjoyed with joy. She was so happy with our

    friend’s approach and shared their life experiences.  

    ….

    I am familiar to Msgana family because I know them as they were living

    in my uncle’s house. I have contact with her siblings and we talk on phone call. My family especially, my siblings are in contact with Msgana through face book.

37. The visa applicant’s written statements dated June 2019 and 12 March 2023 were not signed or translated (if appropriate) and therefore the Tribunal gives this evidence minimal weight.

38. In a written statement dated December 2020 made by the review applicant, and described as updated personal statement, the review applicant said on 22 August 2016 she and the visa applicant were married “surrounded by friends and family”. This evidence was repeated in her statutory declaration dated 13 March 2023. In the statutory declaration she said she is close to the visa applicant’s brother and they talk visa Facebook. She also said:

    Resom’s family is aware that we are married and when Resom and I talk on the phone he mentions that they said hi or that they asked how I’ve been. I am Facebook friends with his siblings that live in foreign countries and we talk once in a while. My family are not strangers to the fact that Resom and I are married and Resom talks to my siblings on the phone. They love him and are very happy that I have finally found someone that loves me as much as I love him.

39. A statement dated 19 July 2020, signed by the review applicant’s daughter (Linda), was provided. She stated she is aware of the parties’ relationship and referred to their daily communication with each other. She said she did not go to their wedding. It appears she has not met the visa applicant in person and has only spoken to him in calls.  The statement was made nearly 3 years ago. The Tribunal gives this evidence limited weight.

40. A statutory declaration dated 5 July 2017, made by Mr Robel Tadesse Gebremariam, was provided. He said he had known the review applicant for 2 years 10 months and the visa applicant for 2 years 9 months. He said he met the visa applicant through a video call. He said he visits the review applicant every weekend and contacts the visa applicant through Viber, Skype and IMO at least once every weekend.  His reasons for his belief that the parties’ relationship is genuine and continuing included that he knows the parties contact each other through Skype, phone and Viber and that the review applicant went to Israel to marry the visa applicant and that their marriage was legalized on 22 August 2016.

41. The delegate noted that Mr Gebremariam stated that he sees the review applicant once a week and was introduced to the visa applicant on video call. The delegate noted that during an interview with the Department the visa applicant advised that he did not know who Mr Gebremariam is and that he had never spoken to him. Given the conflicting accounts, the delegate gave Mr Gebremariam’s statement no weight.

42. A later statutory declaration dated 27 March 2019, made by Mr Gebremariam, was provided in which he said he had known the review applicant for 2 years 5 months and the visa applicant for 2 years 4 months. He said speaks to the visa applicant through Facebook Messenger. His reasons for his belief that the parties’ relationship is genuine and continuing included that the review applicant talks about how she loves the visa applicant and that the visa applicant asks him to help the review applicant whenever she needs help. The Tribunal noted that in his later statutory declaration, Mr Gebremariam indicated that he had known the parties for lesser periods than he stated in his statutory declaration made nearly 2 years earlier.  

43. A statutory declaration dated 6 July 2017 made by Ms Marta Bahta was provided. She said she had known the visa applicant for 2 years 7 months and she had known the review applicant for 1 year 7 months. Ms Bahta said she contacts the review applicant once a week and said she believes the parties’ relationship is genuine as they communicate with each other constantly through video calls and texts. The delegate noted that during an interview with the Department the visa applicant confirmed that Ms Bahta was the review applicant’s friend and that he had never spoken to her. As Ms Bahta had not met the visa applicant and had not spent time with the parties as a couple, the Tribunal gives this evidence no weight.

44. A later statutory declaration dated 9 April 2019, made by Ms Bahta, was provided. She said she had known the visa applicant for 2 years and she had known the review applicant for “2 years 5 years”. She said the review applicant often calls the visa applicant when they are together. She said the review applicant passes the phone to her and she says “hi” to the visa applicant. Her reasons for her belief that the parties’ relationship is genuine and continuing included that the review applicant tells her that she can’t wait to see the visa applicant and she was heartbroken when she found out that visa application had been refused. The Tribunal noted that in her later statutory declaration, Ms Bahta indicated that she had known the visa applicant for a lesser period than she stated in her statutory declaration made nearly 2 years earlier.

1. A statutory declaration dated 6 July 2017, made by Mr Tirhas Tewelde Gangul, was provided. He said he had known the parties for 2 years 10 months. Mr Gangul said he sees the review applicant twice a week and had been introduced to the visa applicant in a video call. Mr Gangul said he believes the parties’ relationship is genuine as they are always contacting each other when he is visiting the review applicant and the review applicant went across the world to marry the visa applicant and their relationship was officially legalised in Israel.  The delegate noted that during an interview with the Department the visa applicant confirmed that Mr Gangul was the review applicant’s friend and said that he had never spoken to Mr Gangul. Given this, the Tribunal gives this evidence no weight.

2. Prior to making a decision, the Tribunal wrote to the representative and advised that:

   Upon reviewing the file, the Member has noted inconsistencies in the information

   provided by Mr Robel Tadesse Gebremariam and Ms Marta Bahta in the statutory declarations they have provided in 2017 and 2019 and this raises concerns as to the credibility of their evidence. The submissions provided to date also do not address the inconsistencies raised by the delegate in relation to the visa applicant's interview with the Department.

3. No explanation addressing the inconsistencies in the information provided by Mr Gebremariam and Ms Bahta in their statutory declarations was provided in response. No explanation addressing the inconsistencies raised by the delegate in relation to the visa applicant's interview with the Department was provided in response.

4. Given the inconsistencies raised by the delegate, the inconsistencies in the periods of time Mr Gebremariam and Ms Bahta indicated they had known the parties (as stated above), the fact that it appears Mr Gebremariam, Mr Gangul and Ms Bahta have not met the visa applicant and have not spent time with the parties as a couple, the Tribunal gives the evidence in their respective statutory declarations no weight.

5. A statutory declaration dated 4 March 2019 made by the visa applicant’s friend, Mr Negasi Sabatu, was provided. He said he had known the review applicant since 2016. He said during the parties’ honeymoon, he was “always with them in their movement”. He said when he is with the visa applicant he chats with the review applicant by Viber. His reasons for his belief that the parties’ relationship is genuine and continuing included that their marriage is based on Orthodox religious beliefs, their continuous contact and nature of their chats reflects their strong relationship and that he hears them chatting about their future life together. The Tribunal gives this evidence some weight.

6. A statutory declaration dated 1 May 2019 made by the visa applicant’s friend, Mr Bereket Sibahtu, was provided. He said he had known the review applicant since 2016. His reasons for his belief that the parties’ relationship is genuine and continuing included that their marriage is based on Orthodox religious beliefs, that the visa applicant is a family person and he sees his future with the review applicant. He said the visa applicant misses the review applicant and he is eager to join her.  Regarding the review applicant, he said,” I know very little but during her stay with us in Israel and the way talk on telephone and her desire to have a lovely family with my friend, I can say the relationship to be everlasting”. Given the general nature of his reasons for his belief that parties’ relationship is genuine and continuing, the Tribunal gives this evidence limited  weight.

7. A statutory declaration dated 19 March 2020 made by the review applicant’s friend, Ms Merry Asefa Ergetu, was provided. She said she had known the review applicant since 2014. She said the parties were married in 2016. She said the parties communicate online and the visa applicant has taken on the role as stepfather to the review applicant’s 15 year old daughter. She said she has been supporting the review applicant physically and emotionally as the application process has been very stressful. It does not appear that Ms Ergetu has met the visa applicant and she did not provide any information regarding her belief as to the genuineness of the parties’ relationship. The Tribunal gives this evidence minimal weight.

8. Prior to making a decision, the Tribunal wrote to the representative and advised that there is no current evidence provided of the social aspects of the relationship (including sworn statements from third parties who have spent time with the parties as a couple). The representative was also advised that:

   The evidence provided thus far is dated in 2017, 2019 and 2020. The Tribunal must be satisfied that the criteria for the visa is met at the time of application and at the time of decision, the latter of which is 2023. 

9. No current statements from third parties were provided in response.

10. A photo of the parties with other people, described as “wedding” was provided. A photo dated 22 August 2016 of the visa applicant with six other people who appeared to be the wedding party was provided. The parties’ wedding invitation was also provided. A photograph of the parties with other people indicated to have been taken in 2016 were provided.

11. The written statements dated June 2019 and 12 March 2023 made by the visa applicant refer to the parties spending time with family and friends and traveling together when the review applicant was in Israel in 2016. No evidence of the parties planning or undertaking joint social activities when the review applicant travelled to Eritrea in December 2022 was provided.

12. The Tribunal has had regard to the statutory declarations and photographs. As noted, the Tribunal gave most of this evidence limited, minimal or no weight for the reasons stated including that the declarants did not provide persuasive reasons for their opinions about the nature of the relationship and/or appeared that they had not spent time with the parties as a couple.  Despite the limited evidence and taking into account the matters referred to above, the Tribunal finds that the parties represented themselves to others as being married to each other at the time of application. However there is no persuasive evidence before the Tribunal that the parties continue to represent themselves to others as being married to each other at the time of decision. In making this determination the Tribunal has taken into account that prior to making a decision, a request for this evidence was made.

13. The Tribunal finds that the parties married in the presence of family and friends in 2016. There was no evidence regarding whether the parties represent themselves to other people as being married to each other or the opinion of friends and acquaintances about the nature of the relationship at the time of decision and the Tribunal so finds. The Tribunal finds that there is minimal evidence of the parties undertaking joint social activities at the time of application and there is no evidence of the parties planning and undertaking joint social activities at the time of decision.

    The nature of the parties’ commitment

14. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

15. In written statements dated June 2019 and 12 March 2023 made by the visa applicant, he said:

    During her stay with me in Tel Aviv, we discussed all the situations in our earlier relationship in Asmara and the life during which we were apart and our future. We had planned to have children and have a happy family. We agreed to have our own business in Australia, and I will make her to depend on her own life. At the end, we promised to have an enjoyable and better life in the peaceful country Australia.

    ….

    We have a great dream to have our own house and guide our life with joy.  

    Our communication is mostly with messenger Facebook. We chat three times a week.

16. The visa applicant’s written statements dated June 2019 and 12 March 2023 were not signed or translated (if appropriate) and therefore the Tribunal gives this evidence minimal weight.

17. In a written statement dated December 2020 made by the review applicant, and described as updated personal statement, the review applicant said she and the visa applicant talk to each other on a variety of media such as Viber and Facebook Messenger and said they try to talk to each other every day but it is sometimes difficult because they are both busy and because of the time difference. She said when they have had bad days they help each other out. She said in the future they look forward to having children, owning a house and travelling together.

18. In a statutory declaration dated 13 March 2023, the review applicant said:

    We talk with each other as much as we can but since we are both so busy it’s hard to talk daily but we try. There is a 7 to 8 hour time difference between Coffs Harbour and Israel. I have a demanding job and Resom works in his market stall. Despite these difficulties, we use whatever free time we can to share what is happening in our lives. When we talk to each other we talk to each other on a variety of media such as Viber and Facebook messenger. During these talks, we discuss life in general. We talk about what we have going on and our days. We talk about our families and friends. He comforts me when I'm struggling. I let him know I wouldn't hesitate to help him out if he needed help. He makes me feel so much better after long days.

    …..

    We look forward to living as a family in the future. We want to own a house and we look forward to travelling all over the world together.

    ….

    Resom provides me so much emotional support, whatever I’m struggling with, he

    always manages to calm me down and provides solutions for me. An example is last year I was very stressed out because I struggled with parenting Linda in her senior year of High School. She was stressed out with school and HSC exams and we just kept butting heads and although I tried to help her through this rough time she wasn’t responding positively to my effort. When I let Resom know about how I was having a hard time helping her, he told me not to worry about it. I found out later that he’d called Linda and gave fatherly advice and let her know how I was feeling about the situation.  

19. Evidence that the review applicant travelled to Eritrea in early December 2022 and returned to Australia in early February 2023 was provided. Prior to making a decision, the Tribunal wrote to the representative and requested that the review applicant provide evidence of   where she lived during the absence.  No information was provided in response to this request.

20. Evidence of communication between the parties in 2016, 2017, 2020, 2021 and 2022 was provided. The messages were not translated. Prior to making a decision, the Tribunal wrote to the representative and advised that the evidence of communication provided to date was not translated and therefore there is nothing before the presiding Member regarding the nature of the messaging. In response, on 16 March 2023 the representative provided evidence described as Record of telephone communication. The evidence consisted of 5 pages indicating that one of the parties to the communication was the visa applicant. The evidence indicated audio calls had been made or missed. The conversation in the communication was not translated. Three of the pages were undated and the remaining pages showed 5 and 8 March (year not stated)  as the date of the communication.

21. Despite the limited evidence, the Tribunal finds that the parties maintain regular contact with each other. The Tribunal gives some weight to the evidence of the nature of the persons’ commitment to each other.

22. The Tribunal finds that the parties have been married for more than 6 years and that they have lived together for one month following their marriage in 2016.  The Tribunal accepts that the review applicant travelled to Eritrea in December 2022 however there was no evidence, despite the Tribunal’s specific request, that the parties lived together during her absence from Australia.  There was no evidence of emotional support by the visa applicant or the review applicant at the time of application. The Tribunal accepts the review applicant’s statutory declaration and finds that the review applicant draws emotional support from the visa applicant at the time of decision.

    Conclusion

23. In the present matter there is some evidence that would support a finding that the parties are in a genuine and continuing relationship at the time of application and at the time of decision. This includes money transfers from the visa applicant to the review applicant in 2017, 2020, 2021 and 2022 and a statutory declaration made by Mr Negasi Sabatu.

24. Prior to making a decision, the Tribunal advised the representative that there was no sworn evidence from the review applicant or the visa applicant at the time of decision. In response, a statutory declaration dated 13 March 2023 made by the review applicant was provided however the written statements dated June 2019 and 12 March 2023 made by the visa applicant were not signed, not translated (if appropriate) and were not sworn evidence. Accordingly, the Tribunal gives these written statements minimal weight.

25. As noted, the Tribunal accepts that the parties resided in different countries at the time of application and continue to do so at the time of decision. However, when evidence that the review applicant travelled to Eritrea in early December 2022 and returned to Australia in early February 2023 was provided, the Tribunal requested the review applicant provide evidence of where she lived during her absence from Australia and how she spent her time during the absence.  As noted, no information was provided in response to this request.

26. The most unsatisfactory evidence is the evidence in relation to the social aspects of the relationship. For the reasons stated, the Tribunal gives several of the statutory declarations minimal, limited or no weight. Prior to making a decision, the Tribunal advised the representative that the inconsistencies raised by the delegate in relation to the visa applicant's interview with the Department and his statements about Mr Gebremariam and Mr Gangul had not been addressed in submissions received to date. Despite this, no explanation addressing the inconsistencies was provided in response.

27. Prior to making a decision the Tribunal also advised that there was no current evidence of the social aspects of the relationship, including sworn statements from third parties who have spent time with the parties as a couple. No current evidence was provided and the most recent evidence from a third party was a statutory declaration dated 19 March 2020 made by Ms Merry Asefa Ergetu, who appeared to have not met the visa applicant and did not provide any information regarding her belief as to the genuineness of the parties’ relationship.

28. The evidence provided in relation to nature of the parties’ commitment included the review applicant’s updated personal statement dated December 2020 and her statutory declaration dated 13 March 2023, and the visa applicant’s written statements dated June 2019 and 12 March 2023. For the reasons stated, the Tribunal gives the visa applicant’s written statements minimal weight. The review applicant’s updated personal statement was signed but was not sworn evidence however as it was consistent with her statutory declaration, the Tribunal accepts this evidence and gives it some weight. Evidence of communication between the parties in 2016, 2017, 2020, 2021 and 2022 was provided.  However, as also noted, despite advising the representative that this evidence was not translated and therefore there was nothing before the presiding Member regarding the nature of the messaging, the only further evidence provided consisted of 5 pages and any conversation in the communication was not translated.

29. The Tribunal finds that the parties have been married for more than 6 years. The Tribunal finds that the visa applicant has sent the review applicant money on several occasions and that the parties have pooled their financial resources insofar as they have both contributed to the Commonwealth bank account. However this is not outweighed by the inconsistent and minimal evidence of the social aspects of the relationship and the minimal evidence of the nature of the parties’ commitment at the time of application and at the time of decision. The Tribunal considers that the review applicant was given ample opportunity to provide probative evidence and failed to do so.

30. 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 the time of this decision.

31. Therefore, the visa applicant does not meet cl 309.211(2) and cl 309.221.

    DECISION

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

    Christine Kannis
    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).