Ntumba (Migration)

Ntumba (Migration) [2023] AATA 686 (15 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mbiya Ntumba
VISA APPLICANT:  Ms Mbombo Melodie Kayikuabu
CASE NUMBER:  1902782
DIBP REFERENCE(S):  BCC2017/1217367
MEMBER:Brygyda Maiden
DATE:15 March 2023
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 15 March 2023 at 7:52am
CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa – subclass 309 – lack of evidence demonstrating the degree of companionship and emotional support – no evidence that the parties pool financial resources – limited knowledge about each other’s address details – concerns about the parties’ future plans – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 48, 65, 359
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221
CASES
He v MIBP[2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 November 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the “Act”).
The visa applicant applied for the visa on 30 March 2017 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 (Cth) (the “Regulations”). The primary criteria must be satisfied by at least one applicant.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211, in particular, cl 309.211(2), in that there was insufficient evidence to demonstrate that she was the spouse or de facto partner of the review applicant as defined under s 5F and s 5CB of the Act.
On 14 December 2022, the Tribunal wrote to the review applicant requesting further information pertaining to reg 1.09A (de facto relationship) and reg 1.15A (spouse matters) and provided a guide as to the types of information that could be provided. The review applicant did submit some further information in response to that request.
The review applicant appeared before the Tribunal on 13 February 2023 to give evidence and present arguments. The review applicant’s oral evidence was in English. The Tribunal also received oral evidence from the visa applicant. The Tribunal was assisted by an interpreter in the French and English languages.
The review applicant was not represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is the spouse or de facto partner of the review applicant.
Are the parties in a spouse or de facto relationship?
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 who holds an Australian passport. The Department file contains a copy of the bio pages of the review applicant’s now expired Australian passport, and the review applicant also submitted a copy of the bio pages of a more recent but also expired Australian passport.
‘De facto partner’ is defined in s 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s5CB(2).
‘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, and whether the parties are in a de facto or spouse relationship 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 reg 1.09A(3) for de facto partners or reg 1.15A(3) for spouses. Reg 1.15A(3) is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.09A(3) and reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The review applicant submitted:
a.a translated document dated 15 February 2014, which purports to be from the visa applicant’s parents, indicating that they accept the parties’ marriage, and that they had received all the items required as conditions for marriage without any credit in the future, and a dowry amounting to $1,000. This appears to be evidence of a traditional marriage; and
b.a translated copy of the marriage record from the Democratic Republic of Congo, which indicates that the parties were legally married on 13 October 2018.
The Tribunal is not satisfied that the traditional marriage is a legal marriage, which appears to be consistent with the marriage being registered by the parties. Therefore, at the time of application, the Tribunal does not accept that the parties were married to each other. For this reason, the Tribunal will determine whether at the time of application the parties were in a de facto relationship.
On the evidence, at the time of decision, 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). However, this evidence alone does not in the Tribunal’s view demonstrate a mutual commitment to a shared life together or a relationship that is genuine and continuing. The Tribunal will determine whether at the time of decision the parties were in a spouse relationship.
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship
The Tribunal has considered the financial aspects of the relationship, including: 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 obligations in respect of the other; and the basis of any sharing of day-to-day household expenses.
Do the parties have any joint ownership of real estate or other major assets?
The review applicant gave oral evidence that the parties have no joint ownership of real estate or other major assets. It follows that at the time of application and time of decision that the parties did not have any joint ownership of real estate or other major assets.
Do the parties have any joint liabilities?
The review applicant gave oral evidence that the parties have no joint liabilities. It follows that at the time of application and time of decision that the parties did not have any joint liabilities.
To what extent is there any pooling of financial resources?
At the time of application and at the time of decision there is no evidence that the parties pool financial resources.
Does one person in the relationship owe any legal obligations in respect of the other?
At the time of application and time of decision, there is no evidence of one person in the relationship owing a legal obligation in respect of the other.
What is the basis of any sharing of day-to-day household expenses?
The parties live in separate countries at the time of application and at the time of decision. The last time the review applicant saw the visa applicant was in 2015.
The delegate’s decision indicates that the review applicant sent money to the visa applicant via Western Union before and after the parties met in person. Although copies of these transfers do not appear on the Department file, the Tribunal accepts that at the time of application, money transfers were made.
The review applicant’s statutory declaration dated 6 September 2018, on the Department file indicates that the review applicant has been sending money to the visa applicant through a third party as it is convenient for the visa applicant to collect the money this way. The review applicant uses Mr Buzngu Jean Robert KA and sometimes Tefani Thaty Abata, who pass money on to the visa applicant so she can meet her financial commitments. A number of receipts for money transfers from the review applicant to those individuals in 2018 have been provided, sometimes with the amount of the transfer cut off the receipt. In oral evidence, the visa applicant indicated that she had only had money transferred to her by one of these individuals, as well as by another individual entirely. She indicated that this process had been implemented as a matter of safety, as she is a woman. The visa applicant gave similar evidence that sometimes it was safer to use a third party, such as an individual who attends his church or the visa applicant’s church, to transfer money to the visa applicant.
The review applicant submitted World Remit money transfer payment receipts from himself to the visa applicant from 26 December 2018 to 5 April 2021. In most cases transfers were made twice a month for varying amounts under $350, with the lowest being for $56. There is also evidence of transfers between 22 December 2021 and 22 December 2022. The money is transferred at least monthly and sometimes more often. The amounts range from $94 to $446. The review applicant testified that he sent money to the visa applicant for food, rent and everything else she needed. That being said, the review applicant indicated that the visa applicant did work, but it is not permanent. She studied to sew clothes but it is difficult for her to have a secure and ongoing job. The visa applicant gave consistent evidence in relation to the use of the money transfers but inconsistent evidence about her employment stating that she did not do anything. The Tribunal gives the evidence of the money transfers some weight.
At the time of application, the parties had no joint ownership of real estate or other major assets, no joint liabilities, there was no pooling of financial resources and no party owed any legal obligation in respect of the other. In terms of the sharing of day-to-day household expenses, the review applicant financially supported the visa applicant in terms of paying for food, rent and anything else she needs – which the Tribunal attributes some weight to. At that time, as the parties were living in separate countries, and the Tribunal accepts that there may be difficulty in terms of the financial aspects of the relationship, the Tribunal gives neutral weight to this matter in its consideration of this review.
At the time of decision, the parties had no joint ownership of real estate or other major assets, no joint liabilities, there was no pooling of financial resources and no party owed any legal obligation in respect of the other. In respect of the sharing of day-to-day household expenses, the review applicant continues to financially support the visa applicant in terms of paying for food, rent and anything else she needs – which the Tribunal attributes some weight to. The parties still reside in different countries and the Tribunal continues to accept that there may be difficulty in terms of financial aspects of the relationship. Therefore, the Tribunal gives neutral weight to this matter in its consideration of this review.
Nature of the household
The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.
Is there any joint responsibility for the care and support of children?
The review applicant’s evidence was that the parties have no children together and have no children from any other relationship.
What are the living arrangements of the persons?
The Tribunal asked the parties about their living arrangements at the time of application. The visa applicant gave oral evidence that she was living in Johannesburg, South Africa, and is living in the same place at the time of decision. The review applicant gave consistent evidence about the visa applicant’s property number and street name at the time of application and tried a number of words that began with the letter “B” but was not able to specify the correct suburb.
The Tribunal asked the parties about their living arrangements at the time of decision. The review applicant stated that the visa applicant lived in a unit in Johannesburg, South Africa. He initially indicated that he could not remember her address “off the top of [his] head”, did not identify the street name, was incorrect about the number and struggled with the suburb, again indicating a number of words beginning with the letter “B”. He did mention that the visa applicant had been living with a friend name Bijoux Kapinda, but the friend had moved out. This is consistent with Bijoux Kapinda’s statement dated 22 February 2023. The review applicant did not indicate that at the time of decision and the time of application the visa applicant was living at the same property. The Tribunal stated that it found it concerning that the review applicant could not remember the address of his wife when his evidence was that he speaks to her every day (he also claims to pay her rent). The review applicant stated he had seen her address, but he does not deal with it, and just transfers the money. The Tribunal indicated that it was unusual for the review applicant not to know the visa applicant’s address, and he stated he was struggling to remember it. The Tribunal raised this matter again as a concern at the conclusion of the hearing, to which the review applicant again stated that he was struggling to remember. He mentioned that he had Seventh Avenue, and something that began with the letter B and the number 90. He stated that he may not have been completely accurate but was on the right track. The Tribunal notes that he did say this at the time of application, but when asked the same question at the time of decision the address number was incorrect.
It appeared to the Tribunal that the review applicant was not familiar with the visa applicant’s living arrangements, and it would be reasonable to expect that a party in a genuine and continuing relationship would have good knowledge of their spouse’s residential address, particularly if they have lived in the same place for a number of years.
The review applicant testified that he has lived in Doveton, Melbourne for seven to eight years in a two-bedroom unit, and he lives alone. The visa applicant, other than identifying that he lived in Melbourne, did not know his street name or number or suburb name. The Tribunal indicated its concern about this given that the review applicant had resided in the same place for seven to eight years, and that the parties speak every day. The visa applicant stated that it was an English word that escaped her. The Tribunal queried whether she knew the suburb name, and the visa applicant said that she did not and had no other details. The Tribunal expressed surprise that the visa applicant would not ask about the review applicant’s address or look it up on the internet considering that the review applicant had lived there for so long. The visa applicant did not respond.
The Tribunal finds the parties limited knowledge about each other’s address details concerning. For the review applicant to not even know the suburb where the visa applicant resides when he claims to be paying rent and given the duration that the parties have lived in the same address is not consistent with the parties being in a genuine and continuing relationship.
Is there sharing of the responsibility of housework?
The last time the parties saw each other was in 2015 in South Africa for a period of approximately one month, so it follows that housework has not been shared at either the time of application or the time of decision.
At the time of application and at the time of decision the parties living arrangements were that they were living in separate countries: Australia and South Africa, they had no joint responsibility for the care and support of children and did not share the responsibility for housework as they reside in separate countries. The Tribunal affords this neutral weight as it accepts that the parties would have difficulty establishing a household given that they reside in separate countries. However the parties have been living at the same addresses since the time of application (and continue to reside there at the time of decision). Despite the duration that the parties have resided at the same address, neither was able to correctly identify (in the review applicant’s case) (or identify at all in the visa applicant’s case) the other party’s suburb and in the review applicant’s case this seems inconsistent with him paying the visa applicant’s rent. The Tribunal finds that the parties had limited knowledge of each other’s living arrangements which is not consistent with the parties being in a genuine and continuing relationship.
Social aspects of the relationship
The Tribunal has considered evidence of the social aspects of the relationship, including 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.
Do the parties represent themselves as being in a de facto relationship with each other at the time of application and as being married to each other at the time of decision, and what is the opinion of the persons’ friends and acquaintances about the nature of the relationship?
The Department file contains a form 888 statutory declaration from Ms Mushiya Sarah Musangu dated 7 March 2017. A copy of Ms Musangu’s Australian citizenship certificate also appears on the Department file. Ms Musangu states that she knows the review applicant through church and they have known each other since 2010 and developed a good friendship. Ms Musangu refers to the visa applicant as the review applicant’s “fiancée” and claims to know her via various social media applications and the phone. At the time of declaration, she had known the visa applicant for three years. She believes the parties’ relationship is genuine because the review applicant worked hard to save money to pay for the visa application, which was not successful, and has continued to work to save money for the second. Ms Musangu claims that the parties communicate all the time, that she met the visa applicant earlier in 2017 and that the parties love of each other is evident. Both parties are committed Christians and marriage is important to them both.
The Tribunal discussed its concerns with this statutory declaration as it indicated that the parties did not represent themselves as married at the time it was sworn despite the parties claiming to be in a traditional marriage since 2014 (although the Tribunal notes that the parties were not legally married until October 2018). The review applicant’s response was that English was not the first language of the declarant, and that she was confused with terms. The review applicant also acknowledged that both the review applicant and his representative at the time had read the declaration and neither had picked up on it. The Tribunal does not accept the review applicant’s explanation because the review applicant claims to have read the statement prior to it being submitted, and if he were in fact traditionally married in 2014, it seems unusual that he would have not noticed that the review applicant was referred to as his “fiancée” in a statement made in 2017. This statement does not provide evidence of the parties representing themselves as being in a de facto relationship or being married and provides a small amount of evidence as to the nature of the parties’ relationship.

The review applicant submitted to the Tribunal a translated statement from both parents of the visa applicant dated 28 October 2019, which states that they acknowledge the parties’ marriage, and give their support to the visa applicant coming to Australia. They also confirm they have received goods and dowry on behalf of the review applicant as a token of the parties’ marriage, according to their tradition. Although the Tribunal accepts that this statement does provide some indication that the parties represent themselves to others as being married after their legal marriage date, it does not provide any evidence as to the nature of their relationship.
During the hearing the Tribunal mentioned that it was concerned about the small amount of evidence as to the parties representing that they were married and the nature of the parties’ relationship given the duration of their relationship. The Tribunal also afforded the review applicant additional time post hearing to submit further documentation in this regard.
Post hearing, the review applicant submitted statements from:
a.Nick Tshibala, dated 15 February 2023, who is the Democratic Republic of Congo Community Association of Victoria Inc’s chairperson and has known the review applicant for more than 20 years. He states that the Congolese community is aware of the marriage between the parties, and the review applicant has been confident that the visa applicant will join him in Melbourne. He expects that the arrival of the visa applicant will bolster the review applicant’s psychological strength and wellbeing. It is not clear on the face of the statement how long Mr Tshibala has been aware of the parties’ marriage.
b.Pastor Decal Nono, dated 15 February 2023, of the Devine Restoration Church. He states that he is aware of the parties’ marriage, and states that the parties have a strong marriage bond. He has managed to speak to the visa applicant over the phone and “…noticed a high level of loyalty between one another. But their growing concern is for them not being together which creates and emotional and psychological pain to both of them.” It seems from the statement that the Pastor has spoken to the visa applicant a limited number of times and the opinion he offers is that there is a high level of loyalty between the parties. It is not clear from the statement how long the Pastor has been aware of the marriage.
c.Bijoux Kapinga, dated 22 February 2023, who is the best friend of the visa applicant. She confirms that she lived together with the visa applicant “for a very long time” at 7th Avenue, No 90, Bezvalley, Johannesburg, South Africa. She confirms that the parties genuinely love each other as husband and wife, and she has spoken to the review applicant a number of times through the visa applicant.
d.Benjamin Lukusa, dated 25 February 2023, who has known the review applicant for more than five years. He states that he has known the parties as husband and wife, and that both are committed Christians, people of excellent character and good morals. He has spoken to the visa applicant over the phone many times through the review applicant.
When considered as a whole, the Tribunal accepts that the statements indicate that the parties represent themselves as being married and gives this some weight, but they provide little information or insight as to the nature of the parties’ relationship.
At the time of application, other than the translated document dated 15 February 2014, which purports to be from the visa applicant’s parents that indicates that the parties represent themselves as married (as the visa applicant’s parents accept the marriage and have received all the items required as conditions for the marriage) the evidence suggests (as there was only one statement provided to the Department) that the parties represent themselves as engaged. This has since been supplemented by another statement from visa applicant’s parents and post hearing statements, which indicate that the parties represent themselves as being married. There is a small amount of evidence as to the nature of the parties’ relationship by virtue of Ms Musangu’s statement, which the Tribunal affords a small amount of weight.
At the time of decision, there is evidence that the parties (particularly the review applicant) represent themselves as being married. The Tribunal gives this some weight, but there is little evidence from the parties’ friends and acquaintances about the nature of the parties’ relationship, which the Tribunal finds, given the claimed lengthy duration of the parties’ relationship, is not consistent with the parties being in a genuine and continuing relationship.
Is there any basis on which the persons plan and undertake joint social activities?
The Department file contains a small number of photographs of the parties and the parties with others. They are not date stamped or labelled, and do not indicate who is in them. Although the photographs appear to indicate that the parties are known to each other, the pictures are limited and not compelling in terms of demonstrating that the parties undertake joint social activities. Additionally, the last time the parties spent time with each other in person was in 2015 in South Africa.
The review applicant submitted a small number of photographs of the review applicant and the visa applicant separately. There were no photographs of the parties together. The Tribunal gives these photographs no weight as they provide no evidence as to how the parties undertake joint social activities.
The Tribunal noted that it was unusual that the parties had not seen each other since 2015 and now almost eight years had elapsed. The review applicant’s response was that the review applicant had his travel document issued on 6 April 2020 (though he conceded that no travel had been booked as the border had closed). This evidence also indicates at that time he had the financial means to travel. However, the review applicant’s income was affected very badly by the COVID-19 pandemic, as he was a full time Uber driver. After COVID-19, the financial issues continued, and he considered that his hearing before the Tribunal was way overdue and it would have added more pressure for the review applicant to travel to see the visa applicant. Although the Tribunal accepts that there were financial reasons that the review applicant did not travel after the pandemic, it seems he had the means to travel by the issue of his travel documentation prior to the pandemic. The Tribunal does accept that in April 2020 once his documents were issued that he was not able to travel due to the border closures, however, prior to that it had been five years since the parties had seen each other. The Tribunal finds that the small amount of time the parties have spent together (particularly prior to the pandemic) is indicative of the parties not being in a genuine and continuing relationship, and not having a mutual commitment to a shared life together.
In terms of the social aspects of the relationship, at the time of application the translated document dated 15 February 2014, which purports to be from the visa applicant’s parents, indicates that the parties represent themselves as married (as the visa applicant’s parents accept the marriage and have received all the items required as conditions for the marriage) however, Ms Musangu’s statement suggest that the parties represent themselves as being engaged. This is supplement by post time of application statements which indicate that the parties are married. There is a small amount of evidence from the parties’ friends and acquaintances about the nature of the parties’ relationship and a small amount of evidence that the parties have undertaken limited social activities together. On balance, the Tribunal finds there is a small amount of evidence as to the social aspects of the parties’ relationship, but this does not provide much support for the proposition that the parties are in a genuine and continuing relationship or that there is a mutual commitment to a shared life together.
At the time of decision the parties continue to represent themselves to others as being married, but there is little evidence from the parties’ friends and acquaintances about the nature of the parties’ relationship. There is no evidence that the parties have seen each other or have planned or undertaken social events since 2015. Although the Tribunal accepts that there was a period during the COVID-19 pandemic where global travel restrictions were in force (from approximately early 2020 until early to mid-2022), the parties could have seen each other over the considerable period beforehand. The Tribunal accepts that the review applicant suffered financially as a result of the pandemic so affords neutral weight to the review applicant not visiting the visa applicant after the borders opened. On balance, the Tribunal is not satisfied that the social aspects of the relationship are consistent with the parties being in a genuine and continuing relationship.
Nature of persons’ commitment to each other
The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support that the persons draw from each other and whether the persons see the relationship as a long-term one.
What is the duration of the relationship?
According to the review applicant’s history of the parties’ relationship as set out in his e-mail to the Tribunal dated 28 December 2022, the parties grew up in the same town of Mbuyi-Mayi in the Democratic Republic of the Congo. The parties’ families knew each other as they were from the same area and the parties had memories of each other too. The review applicant, with the help of technology and social media, came across the visa applicant in 2014, and they both “clicked” and “connected straight away”. The parties announced their relationship to their families, and the review applicant travelled to South Africa to meet the visa applicant, where they spent time together and got married. The documentation on the Department file indicates that the parties were married in a traditional marriage in 2014 in the Democratic Republic of the Congo with consent of their parents, and despite the impression created by his statement his oral evidence was that he did not attend his traditional marriage. Both parties gave consistent oral evidence that their relationship commenced in 2014.
The review applicant stated that whilst it is not common for a party to not attend a traditional marriage, in circumstances like those of the parties, where they live in separate countries, it does happen. Upon further enquiry by the Tribunal, the review applicant explained that he knew the visa applicant’s family, the parties knew each other when they were much younger, he had seen the visa applicant on social media, he knew who he was dealing with and the families involved had good reputations. The visa applicant gave evidence that the review applicant proposed marriage to her on social media but she did not have a copy of the post. A traditional marriage was arranged in 2014. The parties’ marriage was registered in the Democratic Republic of the Congo in October 2018, which the Tribunal accepts as a legal marriage.
At the time of application, the parties had been in a relationship since 2014, and had a traditional marriage on 15 February 2014 (but not a legal marriage). As the parties were not legally married, at the time of application, the parties had been in a relationship for a bit over three years. The Tribunal gives this some weight.
At the time of decision, the parties have been legally married since October 2018. They have been married for over four years and in a relationship for nine years. The Tribunal gives this weight.
What is the length of time the parties have lived together?
The parties have never lived together. For their entire relationship, the parties have lived in separate countries and have not seen each other since they were children, other than for a month in 2015.
What is the degree of companionship and emotional support that the persons draw from each other?
The review applicant’s history of the parties’ relationship, as set out in his e-mail to the Tribunal dated 28 December 2022, indicates that since the parties came into contact in 2014, they have “been in ongoing contact very much every day” mainly via WhatsApp phone calls, chats and video calls.
The Tribunal has considered the following chat records:
a.from the Department file, a small number of chat records from Messenger indicating missed calls from June 2015 and a very small number of chat records until August 2016;
b.from the Department file from 12 September 2016 until 26 July 2018;
c.submitted by the review applicant between Melodie Fleur (Fotolo) and the review applicant from 28 October 2020 until 21 June 2021. The review applicant testified that Melodie Fleur (Fotolo) is the visa applicant. In one of the Congolese languages “fotolo” means flower, and the review applicant refers to the visa applicant as his flower;
d.submitted by the review applicant between Melodie Fleur (Fotolo) and the review applicant from 25 October 2021 until 9 February 2023. The cover e-mail for these chats from the review applicant indicates that they are between him and the visa applicant (his wife), using her main contact number; and
e.between Melodie Mbiya Fleur 2 and Jean Pierre from 11 January 2022 until 9 February 2023.
No evidence of chat records was provided from July 2018 until October 2020.
The review applicant testified that the visa applicant had two phones with different companies in case there was a connection issue. For the most part, when there is a conversation between the parties, this occurs in French (which has not been translated). Despite this, it does not appear that a lot of communication takes place. The bulk of the chats contain: a lot of instances of media being omitted, images being omitted, stickers omitted, many missed voice calls, lots of messages saying “hi”, and links to Facebook and YouTube. The Tribunal gives these chat records little weight as the Tribunal cannot glean from these what degree of companionship and emotional support the parties draw from each other, although the Tribunal accepts that the parties know each other and communicate regularly.
The parties were able to give consistent oral evidence as to the respective churches they attended and as to their common interests such as watching African movies, comedies, politics, gospel songs (including the ability to identify each other’s favourite gospel singer), and soccer. The Tribunal gives this some weight.
The review applicant testified that he had provided the visa applicant with emotional support whilst going through the visa process, which had been tough on both of them. There were times that the visa applicant broke down and the review applicant encouraged her, and he would do the same. If he broke down, she would tell him that she does not have another hope or shoulder to rely on, and that one day the visa situation would be resolved. The Tribunal gives this some weight.
The review applicant said that the visa applicant had provided him with emotional support as the parties are both Christian and their beliefs and encouragement come through the word of God. The visa applicant encouraged him in that way. Because the review applicant does Bible studies and teaches people the word of God, the visa applicant directs him back to that and the encouragement that he provides to other people about the word of God. Two or three weeks prior to the hearing the parties were becoming nervous about the hearing, and the review applicant told the visa applicant to keep her faith in God; God would step in and the parties would obtain some divine intervention and they did not need to panic. The review applicant was touched when the visa applicant said that she did not have faith anymore; her faith had been broken and destroyed and she had been operating on the review applicant’s faith. The visa applicant gave consistent evidence. The Tribunal gives this some weight.
Towards the end of the hearing, when the Tribunal enquired of the visa applicant how she supported the review applicant emotionally. She stated that there is always some, and “all these things happen here and there”. The Tribunal made clear that emotional support was one the matters that the Tribunal had to consider as part of the review and asked for a specific example. The most specific example the visa applicant was able to give was that the review applicant talks to her about faith and encourages her as well. The Tribunal expressed its concerns about the generality of this statement given the length of the parties’ relationship and requested a specific example of something that had occurred that she was able to provide the review applicant with emotional support on. She stated as a couple they always encourage each other and hope that everything is going to be alright. As there appeared to be no interpretation issues pertaining to these questions, the Tribunal found the visa applicant’s answers evasive, and gives this evidence a small amount of weight.
Do the persons see the relationship as a long-term one?
The review applicant’s history of the parties’ relationship, as set out in his e-mail to the Tribunal dated 28 December 2022, indicates that the parties want the opportunity to be together and start a family. In oral evidence the review applicant added that when the visa applicant arrives in Australia she would need to learn to drive, obtain a sewing machine and have a small place to start a sewing business, which would alleviate some financial pressure from the parties. The parties will need to try to get a property like a house and land or an investment property to give them a bit of a financial boost. The review applicant indicated that he was in the process of saving a 10 percent deposit on a block of land worth $340,000 and had saved $7,000.
The visa applicant was not forthcoming in providing evidence in relation to the parties’ future plans. After a number of questions, the Tribunal was eventually able to extract generally consistent evidence with that of the review applicant: that the parties were planning to have children, the review applicant was going to purchase a sewing machine for the visa applicant and the review applicant was going to show her the city and teach her to drive. The visa applicant did not mention making a financial contribution to the relationship by sewing. On balance, the Tribunal gives the evidence some weight.
The visa applicant testified that she had no details regarding the amount of money that the review applicant had saved for the land; however, when the Tribunal expressed concern about this, the visa applicant stated that she remembered that he had told her around $34,000 or something like that. Although $34,000 would be a 10 percent deposit for the land based on the review applicant’s evidence, the amount did not relate to the question the Tribunal asked, which was in relation to savings. The Tribunal expressed concern that the visa applicant did not know how much had been saved for the parties’ future plan to purchase a property. At the end of the hearing, the review applicant appeared keen to point out to the Tribunal that the visa applicant had known about the land as she was able to share some figures with the Tribunal. However, the Tribunal finds that the oral evidence given by the visa applicant was not consistent with the purchase being a future plan of the parties, or it would have been reasonable for the visa applicant to know how much had been saved. Although saving for the purchase of land is something that the review applicant may be doing, it is not something the parties appear to both be involved in and therefore, the Tribunal does not accept that this is a joint plan for the parties’ future.

In relation to what they would do if the visa applicant is unable to come to Australia, the review applicant stated that it may sound a bit naïve, but with the parties’ beliefs, they do not have the option of giving up on their relationship and were just hoping for a way out. The review applicant stated that he did not know what the way out would be but giving up was not what the parties were going to do. The visa applicant testified that the parties had discussed what would occur if she could not come to Australia. She stated that maybe they would go back home or to the village, as long as they were together. The review applicant stated that the visa applicant had suggested that it was not just about Australia, and they could go and live in a village. The review applicant stated that he had considered that option and had wondered how the parties were going to survive if that option was taken up. The review applicant expressed his concerns about not having a secure job or income and the realities of medical care if they became ill whilst living in a village. Given the duration of the parties’ relationship, and the nature of the review, it appears to the Tribunal that the parties have not settled on what would occur if the visa applicant could not come to Australia, which the Tribunal finds unusual, although it appears that the parties have at least discussed the topic. The Tribunal gives this neutral weight.
In terms of the nature of the persons’ commitment to each other, at the time of application, the parties had been in a relationship since 2014, and had a traditional marriage on 15 February 2014 (but not a legal marriage). As the parties were not legally married, at the time of application, the parties had been in a relationship for a bit over three years. The parties were not living together, and only saw each other physically for a month in 2015. The Tribunal finds that there is little evidence of emotional support that the parties draw from each other and although it is clear that the parties communicate regularly though the chat records submitted, these do not reveal the degree of companionship between the parties. Other than the duration of the parties’ relationship, there is little evidence that the parties’ see their relationship as a long term one. On balance, the Tribunal is not satisfied that the nature of the persons’ commitment is consistent with the parties being in a genuine and continuing relationship.
At the time of decision, the parties have been legally married since October 2018, for over four years, and in a relationship for nine years. The Tribunal gives this weight. The parties continue to live in separate countries and the parties have not seen each other physically since 2015. Given that there is some evidence of continued regular communications between the parties, the Tribunal accepts that the parties give and receive some emotional support from each other and provide some companionship to each other, though the degree is not clear from the records. The Tribunal accepts that the duration of the parties’ relationship tends to indicate that the parties see it as a long term one, although the Tribunal only puts some weight on this as the visa applicant seems unaware of the amount saved to purchase a house which indicates it is not a joint plan for the parties’ future. On balance, there is some evidence of the nature of the parties’ relationship, but given the duration of the relationship, the Tribunal is not satisfied that it is indicative of the parties being in a genuine and continuing relationship or having a mutual commitment to a shared life together.
Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:
This does not mean that evidence subsequent to the visa application does not need to be considered at all. 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.
Accordingly, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application and the documentation submitted by the review applicant after the hearing.
CONCLUSION
The Tribunal accepts that at the time of decision the parties are legally married.
The Tribunal has afforded weight of various amounts to evidence regarding (amongst other things):
a.money transfers from the review applicant to the visa applicant and evidence of the review applicant providing financial support to the visa applicant in terms of paying for day-to-day household expenses;
b.the lengthy duration of the parties’ relationship;
c.there being evidence of the parties’ having common interests;
d.the parties giving each other emotional support; and
e.the parties having some future plans.
However, there are other matters that weigh more heavily against the relationship than those that weigh in favour of it (which have been discussed in further detail above). These include that:
a.there is only a small amount of evidence (other than chat records, which are voluminous though they are not translated and the Tribunal cannot glean from these what degree of companionship and emotional support that the parties draw from each other) in support of the parties’ relationship, despite the lengthy duration of the relationship;
b.neither party could articulate the suburb where the other lived, despite both parties living at the same property since the time of application and despite the review applicant claiming to pay the visa applicant’s rent;
c.the last time the parties saw each other physically (and the only time during their relationship) was a month in 2015. Leaving aside the period of time where global travel restrictions were implemented due to the COVID-19 pandemic and afterwards due to the financial impacts of the pandemic on the review applicant, no evidence (other than the renewing of the review applicant’s travel documentation which does not of itself indicate that he was planning to see the review applicant) was submitted indicating an intention of the review applicant to travel to see the visa applicant;
d.there is little evidence about the nature of the parties’ relationship in terms of the opinion of the parties’ friends and acquaintances despite the Tribunal raising this as a concern at the hearing. Although further statements were submitted by the review applicant post hearing, there is little evidence about the nature of the parties’ relationship which is inconsistent with a relationship of the length of the parties’; and
e.the Tribunal has concerns about the parties’ future plans in that the visa applicant seemed unaware how much the review applicant had saved to purchase land, which indicates that those plans have not been made jointly by the parties.
For these reasons, and with respect to the reg 1.09A(3) matters, there is no evidence before the Tribunal that the parties are related by family (s 5CB(2)(d)). The Tribunal is not satisfied that, on balance, that there is sufficient evidence at the time of application that the parties:
a. had a mutual commitment to a shared life to the exclusion of all others as required by s 5CB(2)(a);
b. had a genuine and continuing relationship as required by s 5CB(2)(b) of the Act; and
c. lived together and did not live separately and apart on a permanent basis as required by s 5CB(2)(c).
For these reasons and with respect to the reg 1.15A(3) matters, the Tribunal is not satisfied that, on balance, there is sufficient evidence at the time of decision that the parties:
a.had a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act; and
b.had a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and
c.lived together and did not live separately and apart on a permanent basis, as required by s 5F(2)(d).
The Tribunal is not satisfied that the requirements of s 5CB(2) are met at the time the visa application was made or that s 5F(2) is met at the time of this decision. Therefore, the visa applicant does not meet clauses 309.221 of Schedule 2 to the Regulations.
For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
Brygyda Maiden
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).

[2023] AATA 686

15 March 2023

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