Ogueri (Migration)

[2023] AATA 3155

Ogueri (Migration) [2023] AATA 3155 (23 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Justice Samuel Ogueri

CASE NUMBER:  2200857

HOME AFFAIRS REFERENCE(S):          BCC2018/548807

MEMBER:Christine Kannis

DATE:23 September 2023

PLACE OF DECISION:  Perth

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

Statement made on 23 September 2023 at 2:47pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing partner relationship – relationship ceased – allegation of a contrived relationship – financial hardship – child from a new relationship – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 5, 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 801.221; r 1.15

CASES

Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 January 2022 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 February 2018 on the basis of his relationship with his sponsor, Ms Georgina Connison. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.801.221(2)(c) because the delegate was not satisfied the applicant and sponsor continued to be in a genuine de facto relationship or genuine spousal relationship.

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

5. On 31 August 2023, the Tribunal sent the applicant an Invitation to attend a hearing.

6. On 31 August 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act inviting him to provide evidence of his relationship with the sponsor at the time of decision. The invitation advised that if the information was not provided in writing by 14 September 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. On 8 September 2023, the Tribunal received information from the Department of Home Affairs that the applicant had contacted their office and requested an expedited processing of his Subclass 309 visa application submitted on 16 August 2023. In his request he advised:

   My AAT hearing has been set for 31/10/2023. I will wish to withdraw the AAT application because my relationship with my ex-wife is broken, but I can’t depart Australia as I am the major financial and emotional provider for my family.

8. On 11 September 2023, the Tribunal sent the following email to the applicant:

   The Tribunal has been notified by the Department of Home Affairs that on 5 September 2023 you contacted the Pretoria office regarding a new subclass 309 partner visa application.

   In that same email you noted that you had an ongoing case with the Administrative Appeals Tribunal for the review of a subclass 801 partner visa refusal. You indicated you wished to withdraw the Tribunal application.

   If you would like to withdraw your application with the Administrative Appeals Tribunal please complete either a withdrawal form or the online withdrawal process (both linked here).

9. The applicant did not respond to the email dated 11 September 2023.

10. The applicant did not provide the information requested in the letter dated 31 August 2023 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 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.

11. On 15 September 2023, the Tribunal advised the applicant that he had lost his entitlement to appear before the Tribunal. He was also advised that the Tribunal had decided to allow him additional time until 22 September 2023 to provide any further information, failing which it would make a decision based on the information available.

12. On 22 September 2023, the applicant provided information and documentation which included but was not limited to a written submission and documents evidencing his relationship with his current partner.

13. The Tribunal has proceeded to make a decision having had regard to all the information before it, including the information provided by the applicant to the Department and to the Tribunal. In these circumstances the Tribunal considers that the applicant has had a fair opportunity to provide relevant information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. Clause 801.221(2)(c) requires that at the time of this decision the applicant continues to be the spouse or de facto partner of the sponsoring partner who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant.

16. In the present case the applicant claimed to be the spouse of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

17. Section 5F 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.  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 parties’ relationship as well as evidence with respect to the nature of the household and their commitment to each other, as set out in r.1.15A(3), which is extracted in the attachment to this decision.

18. The issue in the present case is whether the relationship between the applicant and the sponsor continues to meet the definition of a spousal relationship in s 5F of the Act at the time of decision.

    Background

19. The applicant claims to have met the sponsor on 1 October 2016 and to have begun a relationship on 14 February 2017. The applicant claims to have proposed marriage on 5 October 2017 and to have commenced cohabitation with the sponsor on 1 January 2018. The parties were married on 29 January 2018.

20. In a written submission to the Tribunal received on 22 September 2023, the applicant provided the following information:

    ·His relationship with the sponsor has ended and he is currently in a new relationship.

    ·He believes the Department based their reason on false information which was part of the reason his relationship with the sponsor ended.

    ·The allegation that he was in a contrived relationship with the sponsor was false as they were still legally married at the time of the decision. He provided a certified copy of their Marriage Certificate and statutory declarations from friends and family.

    ·The allegation that he was married to Chioma Anyanwu and they have a child together born on 6 May 2017 was also false. He provided the child’s Birth Certificate which doesn’t name him as the father. He has provided a notice of unaccepted child support application from the Child Support Registrar.

    ·The allegation that he was not living with the sponsor and was living with Chioma Anyanwu was false because at the time of the decision, Chioma Anyanwu was living in Sydney and he was living in Perth and he provided copies of lease documents and renewals and bill receipts with names and address clearly showing.

    ·He lodged a new Partner visa application on 16 August 2023 and requested priority processing from the Department to enable him to remain in Australia legally to support his pregnant wife (Doris Jepkogei Kemboi) who is due on 26 January 2024 and his son (Enyinna Justin Ogueri) however the Department have not responded to his request. He is the main financial provider and emotional support for his family and if he departs Australia they will lose their house and his family's mental and emotional health will be hugely affected in addition to dealing with possible homelessness. His wife is currently working on casual basis and she will be stopping work towards the pregnancy due date. 

21. On 22 September 2023, the applicant also provided evidence of his relationship to Doris Jepkogei Kemboi (including a Marriage Certificate) and evidence of her pregnancy. The Birth Certificate for Enyinna Justin Ogueri was also provided.

22. The Tribunal considered the requirements under r.1.15A(3).

    Financial aspects of the relationship

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

24. In the Partner visa application – information for permanent stage processing, the applicant indicated that he and the sponsor shared day-to-day household costs such as rent.  He also claimed that they had bought land in Nigeria and had started building a family house in Nigeria. The delegate noted that the applicant provided a document in relation to a purchase in Nigeria in the parties’ joint names however the delegate was not able to verify this document.

25. The applicant provided Commonwealth Bank statements in his and the sponsor’s joint names for the periods 1 January 2019 to 4 November 2020 and 1 April 2021 to 12 May 2021. The applicant’s Individual Taxation Returns for the 2017/18 and 2018/19 financial years which showed he indicated the sponsor was his spouse during the relevant financial years were also provided.

26. There is no evidence that the parties have joint ownership of any assets or that they are jointly liable for any debts at the time of decision and the Tribunal so finds. There is no evidence in relation to the financial aspects of the parties’ relationship at the time of decision and the applicant has advised the Tribunal that the relationship with the sponsor has ended. Accordingly, the Tribunal finds that the parties do not pool financial resources or share day-to-day household expenses at the time of this decision.

    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 the Partner visa application – information for permanent stage processing, the applicant indicated that the sponsor does the cooking and all the work in the kitchen and he does the cleaning and the laundry.

29. The applicant provided lease documents in joint names with the sponsor and correspondence to the same address in their joint names dated in 2019 and 2020. The delegate noted that the applicant had provided inconsistent information regarding where he claimed to live at certain  times.

30. No evidence was provided to demonstrate that the parties share a household at the time of decision. No evidence was provided showing the parties’ current living arrangements and any sharing of housework at the time of decision. The applicant has advised the Tribunal that the relationship with the sponsor has ended. Accordingly, the Tribunal finds that the applicant and the sponsor do not share a household at the time of this decision.

    Social aspects of the relationship

31. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether parties represent themselves to other people as being in a de facto relationship.

32. In the Partner visa application – information for permanent stage processing, the applicant claimed that since he met the sponsor they have attended many social and cultural events together and very socially active and spend weekends together. 

33. The applicant provided two statutory declarations dated 3 January 2020 made by friends attesting to the genuineness of the parties’ relationship.  He also provided photos of the parties together and with other people and invitations to social events addressed to the parties jointly dated in 2018 and 2019.

34. There is no evidence in relation to the social aspects of the parties’ relationship at the time of decision. There is no evidence before the Tribunal demonstrating that the applicant and the sponsor represent themselves to other people as being married to each other at the time of decision. There is no evidence in relation to the opinion of the parties’ families or friends about the nature of the parties’ relationship. No current written statements or statutory declarations from friends or family members were provided.  No evidence was provided of any current joint social activities of the parties.

35. The applicant has advised the Tribunal that the relationship with the sponsor has ended. Accordingly, the Tribunal finds that the parties do not represent themselves to other people as being in a spousal relationship and do not engage in joint social activities at the time of this decision.

    Nature of persons’ commitment to each other

36. 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.

37. In the Partner visa application – information for permanent stage processing, the applicant said he and the sponsor had nominated each other as the beneficiary of their respective superannuation policies. He said they had plans to buy a house and start having children together in the near future.

38. The applicant has advised the Tribunal that the relationship with the sponsor has ended. Accordingly, the Tribunal finds that at the time of this decision the parties do not provide each other with companionship and emotional support and do not see the relationship as long term.  

    Non-disclosure certificate

39. The Department’s file contains a non-disclosure certificate (issued by the Department pursuant to s 376 of the Act) relating to information on its file, which subject to validity of the certificate, essentially means that the release of the information to which the certificate is at the discretion of the Tribunal. The reason disclosure of the information would be contrary to public interest was stated to be that the information was given in confidence. The Tribunal considers the certificate to be valid. As no hearing was conducted the applicant was not given an opportunity to comment on the validity of the certificate.  

40. The information covered by the s 376 certificate included allegations received by the Department in 2018 and 2020 that the applicant was in a contrived relationship with the sponsor and that he was in a relationship with Chioma Anyanwu and they had a child together born on 6 May 2017. The Department sent the applicant Natural Justice letters in 2020 and 2021 inviting him to comment on the allegations. The applicant responded and denied the allegations. He also denied the allegations in a telephone call with the Department on 6 January 2022. The delegate also referred to the allegations in the Decision Record. The Tribunal finds the applicant has been made aware of the allegations and has had an opportunity to respond.

41. The Tribunal notes the allegations received by the Department however given the information provided to the Tribunal by the applicant that his relationship with the sponsor has ceased, the Tribunal has not placed any weight on the allegations as there is sufficient reason to affirm the decision under review without considering the allegations.

    Conclusion

42. The Tribunal considered whether the parties are in a genuine and continuing spousal relationship and the matters set out in r.1.15A(3) at the time of decision. 

43. The Tribunal places significant weight on the information provided to the Tribunal by the applicant that his relationship with the sponsor has ceased. The Tribunal places significant weight on the absence of evidence demonstrating the financial and social aspects of the parties’ relationship, the nature of the household and the nature of the parties’ commitment to each other at the time of this decision.  

44. Given the above findings the Tribunal is not satisfied that at the time of this decision the requirements of s 5F are met. Therefore the applicant does not meet cl.801.221(2)(c).

45. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).

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

    DECISION

47. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Christine Kannis
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)any joint ownership of real estate or other major assets; and

    (ii)any joint liabilities; and

    (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)any joint responsibility for the care and support of children; and

    (ii)the living arrangements of the persons; and

    (iii)any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)whether the persons represent themselves to other people as being married to each other; and

    (ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)the duration of the relationship; and

    (ii)the length of time during which the persons have lived together; and

    (iii)the degree of companionship and emotional support that the persons draw from each other; and

    (iv)whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).