Ngodo (Migration)

[2018] AATA 5253

Ngodo (Migration) [2018] AATA 5253 (14 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Samantha Ngodo

VISA APPLICANT:  Mr Ikechukwu Solomon Ngodo

CASE NUMBER:  1715232

DIBP REFERENCE(S):  BCC2016/2559144

MEMBER:Ann Duffield

DATE:14 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 14 November 2018 at 10:59am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine, ongoing and exclusive spousal relationship – rapid decision to marry – joint financial commitments – shared Jehovah’s Witness religion – review applicant’s previous divorce – appreciation of Nigerian culture – decision under review affirmed          

LEGISLATION

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

CASES

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 11 July 2017 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 3 August 2016 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 satisfy cl.309.211. The delegate formed a view that the parties were not in a genuine, ongoing and exclusive spousal relationship as envisaged by the Migration Act.

4. The review applicant appeared before the Tribunal on 11 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing and also provided a post-hearing written submission addressing the Tribunal’s stated concerns.

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

   BACKGROUND

7. The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

8. The review applicant is a citizen of Australia born on 30 July 1967 (51 years old). She has declared a previous marriage and two children. That marriage ended in divorce in July 2003.

9. The visa applicant is a citizen of Nigeria born on 16 August 1985 (32 years old). He has declared no previous relationships and no children.

10. The parties claim to have met on a Jehovah’s Witness online dating site in June 2014 and committed to a shared life together to the exclusion of all others on 9 June 2014. They met in person for the first time on 10 September 2015 and married on 11 September 2015. The review applicant remained in Gambia for 7 weeks before returning to Australia.

11. The lodged the application subject to this review on 3 August 2016.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the parties are in a genuine, ongoing and exclusive spousal relationship as envisaged by the Migration Act.

    SPOUSE/DE FACTO (CL.309.211(2), CL.309.221)

    Whether the parties are in a spouse or de facto relationship

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. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

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). 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?

15. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties married on 11 September 2015 in Gambia (copy of their marriage certificate is at Folio 218 of the Tribunal’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 s.5F(2)(a).

    Are the other requirements for a spouse relationship met?

16. The review applicant presented at the Tribunal hearing to give evidence and the Tribunal spoke to the visa applicant on the phone. The review applicant told the Tribunal that she had mental health issues and that she was on medication for depression and anxiety. She claims that these symptoms started since the delegate refused the visa application in July 2017. The review applicant provided a letter from Ms Anne Richmond, a registered psychologist dated 3 July 2018. Ms Richmond’s report of the review applicant’s condition relies on the information provided to her by the review applicant. On the basis of this information, and one discussion, Ms Richmond states that it is her opinion that the review applicant’s deteriorating mood is a direct consequence of the frustrations she and the visa applicant have experienced in relation to their visa application.

17. The Tribunal has kept this information in mind during the proceedings of the hearing and provided the review applicant with ample opportunities to seek an adjournment should she feel she was not coping. The review applicant conducted herself with composure during the hearing.

18. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses. The review applicant claims that after the refusal by the delegate, her mental health suffered such that her business collapsed. She said that since July 2017 she has been working as a cleaner earning approximately $400-$500 a fortnight. Her bank accounts also disclose that she receives around $600 a fortnight from Centrelink.

19. The visa applicant is currently working in Dubai for a construction company and earns around $400-$500 per month but half of that goes to pay for his accommodation. As such they have managed their finances separately and provide for themselves. Despite this the review applicant has occasionally sent the visa applicant some funds and vice versa. The review applicant claims that the visa applicant paid for the cost of the application. The Tribunal put to the review applicant that the cost of sending those funds appeared exorbitant and it seemed counterproductive to pay such a significant fee to send a relatively small amount of money. The review applicant told the Tribunal that she wanted to help the visa applicant. The Tribunal also notes that the review applicant has nominated the visa applicant as the beneficiary of her superannuation fund.

20. The Tribunal accepts that as the parties live in different countries their capacity to more completely share their financial resources is limited.  They have no mutual assets or liabilities and do not share every day household expenses. The Tribunal gives the financial aspect of the parties’ relationship little determinative weight.

21. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework. Again, the parties live in different countries and it is therefore difficult to provide extensive relevant evidence to support this aspect of their relationship. The parties claim to have lived together for a period of seven weeks after their marriage in Gambia and have provided some statements from friends supporting that claim. The review applicant told the Tribunal that she has moved into a bigger flat in anticipation of the visa applicant’s arrival in Australia. The review applicant’s children are adults and the visa applicant does not have any children and hence they have no mutual or several responsibilities in this regard. They claim not to have discussed the matter of whether they would have children in the future as their lives are currently in limbo and they cannot make those sorts of decisions or think about those things. The parties claim to communicate with each other regularly through social and electronic media. The Tribunal give this aspect of the parties’ relationship little determinative weight.

22. The Tribunal has considered the social aspects of the relationship – including whether 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. This again, is a difficult aspect to provide supporting evidence as the parties have spent only seven weeks together. Whilst they were together in Gambia the Tribunal accepts that they presented themselves to others as a married couple.

23. The Tribunal also accepts that the review applicant presents herself to others as the wife of the visa applicant and has taken his surname by deed poll. The Tribunal has been provided with photographs of the parties together and with others and accepts that they have spent time together. The Tribunal has also had regard to a number of statements from friends and acquaintances stating that they believe the parties’ relationship is genuine. The review applicant told the Tribunal that her adult children have not met the visa applicant and no family members were present at their wedding. Asked why this was so, the review applicant told the Tribunal that her daughters have spoken to the visa applicant on the phone but they are adults and have their own lives.

24. On balance and because of their separate living arrangements are by necessity, the Tribunal gives little determinative weight to this aspect of the parties’ relationship.

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

26. The parties married a day after they met in person and some fifteen months after they commenced an online relationship through a Jehovah’s Witness website in around June 2014. Both defended their marriage the day after meeting, stating that their faith did not allow them to live together prior to marriage. Their representative states that a short engagement is reasonable for member of the Jehovah’s Witnesses who hold a high cultural value for morality. The parties told the Tribunal that the review applicant travelled to Gambia with the expresses intention of marrying the visa applicant.

27. Whilst the parties’ representative exhorts the Tribunal not to fall into jurisdictional error by questioning the motives of the parties, the Tribunal finds the parties arguments difficult to accept. Even if the parties were driven by the dictates of their faith it was nevertheless a quick decision to make. The parties are separated by culture and age and their arguments that their shared religion overcomes those differences were not compelling or convincing.

28. The parties claim to be devout members of the Jehovah’s Witnesses. The visa applicant was born into that Church and claims to have participated in religious act ivies from an early age. This is supported by friends and relatives of the visa applicant.  The review applicant has been a member of the church since around 1998. This is also supported by a fellow member of the Church. Both parties placed significant emphasis on their shared membership of this church, their shared values and in particular emphasised that the church saw marriage as a permanent and ongoing commitment and to question that marriage meant it was viewed as a mockery to their God Jehovah.

29. The Tribunal questioned the review applicant about this aspect of her faith, noting that she had previously married a fellow member of the church and that marriage ended in divorce. The Tribunal asked her why she did not feel bound to that relationship as her faith required, but sought to divorce her first husband. She said that the circumstances of her divorce from her first husband were special. Asked how, therefore, she and the visa applicant could make a claim that their faith would ensure their marriage was genuine and ongoing; the applicant said that the church allowed divorce in certain circumstances.

30. The Tribunal finds this response glib and unsatisfactory given the emphasis placed by both parties, and their representative, upon the permanence of their marriage and the fact that their faith overcomes all barriers of age and culture.

31. The Tribunal accepts that parties enter into a marriage for many reasons, including the prospect of permanent residence in Australia and mutual benefits for both parties. When the Tribunal asked the review applicant if she had considered the prospect that the visa applicant had entered into the marriage solely to gain Australian permanent residence, she strongly denied this. She said that the visa applicant had indicated a desire to learn to speak Polish as that was her first language.

32. The review applicant told the Tribunal that she has admired Nigerian culture for many years and had focused on that country to find a partner. Asked what aspects of the culture appealed to her she said that she liked the way that they live and eat; their family orientation and the way they dressed. She said that it suited her personality and high level of intelligence. She said that she was also highly emotional and that the visa applicant did not find that a difficulty.

33. The Tribunal also finds this response glib and unconvincing. Whilst claiming admiration of Nigerian culture she seemed to lack any detailed knowledge of that culture and the Tribunal notes that despite making a specific reference to liking the cultural dress of Nigeria, she married the visa applicant in a short white western-style dress. These incongruences together work to diminish the strength of the review applicant’s arguments and raise some questions in the Tribunal’s mind about the extent to which the review applicant is indeed committed to a life with the visa applicant.

34. The Tribunal asked the applicant why, given her claims that she was desperate to be with the visa applicant, she had nevertheless not sought to be reunited with him at any time since she left Gambia after her marriage in 2015 and took over a year to lodge the application for a spouse visa.

35. The applicant told the Tribunal that if she travelled to see him she would never be able to leave his side again. Asked if she had considered living with him in another country she said that her life was in Australia and she had a right to bring her husband here. She also claimed that she found it impossible to travel such long distances because of her anxiety and depression. The Tribunal put to her that she had earlier claimed that her depression had begun after the refusal of her application in July 2017 and she could have travelled to see him before then. The review applicant claimed that it took her a long time to gather together the necessary documents for the application and to save the money. She said she did not visit before then because she was confident that the application would be successful. The parties also told the Tribunal that the visa applicant moved from Gambia to Dubai in order to shorten the distance that the review applicant would need to travel in order to see him.

36. The Tribunal finds these claims unpersuasive. For example, the supporting evidence the review applicant has provided in relation to her mental illness from Ms Richmond does not state that the review applicant is unable to travel. The parties have conducted a disembodied and virtual relationship for many years over social and electronic media. In the Tribunal’s mind there is little in the way of actual or material commitment involved in the conduct of such relationships. They differ entirely from the day to day presence and demands of individuals on a person’s life particularly on those who have lived their lives for substantial periods without a partner.

37. Be that as it may, the Tribunal is again reminded by the representative of the parties that the following considerations are irrelevant in the Tribunal’s consideration of the parties relationship:

a)    The circumstances surrounding the commencement of the parties relationship;

b)    The motive of the parties to enter the relationship;

c)    The differences in age and the absence of discussions relating to children;

d)    The likelihood of the relationship being long-term;

e)    The quality of the parties relationship;

f)     Reliance of r.1.15A criteria; and

g)    Absence or presence of romantic love.

1. It seems to the Tribunal if it removes itself from consideration of these matters, then it is left with little except the exhortations by the parties that their faith will keep them together. Despite this, the Tribunal has nonetheless considered these matters as it is required to do in the preceding paragraphs. Equally, as discussed above, the Tribunal is not satisfied that the parties’ mutual religion is a strong argument to support a claim that they consider their relationship to be genuine, ongoing and exclusive.

2. Having considered all aspects of the parties’ relationship and weighed them accordingly, on balance, the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made or at the time of this decision.

3. Therefore the visa applicant does not meet cl.309.211 or cl.309.221.

   CONCLUSION

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

   DECISION

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

   Ann Duffield
   Senior 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).