OZOEMENA (Migration)

[2017] AATA 2319

OZOEMENA (Migration) [2017] AATA 2319 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Franklin Nnabuike OZOEMENA

CASE NUMBER:  1618905

DIBP REFERENCE(S):  BCC2015/25182

MEMBER:Russell Matheson

DATE:8 November 2017

PLACE OF DECISION:  Sydney

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

·cl.820.211 and cl.820.221 of Schedule 2 to the Regulations.

Statement made on 08 November 2017 at 11:33am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Genuine spousal relationship – Significant inconsistencies in evidence – Explanations provided for inconsistencies – Limited evidence of joint financial responsibilities – Joint living arrangements – Representation of relationship

LEGISLATION

Migration Act 1958, ss 5F, 65, 359AA

Migration Regulations 1994, r 1.15A, Schedule 2, cl 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 25 October 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 32 year old national from Nigeria. He applied for the visa on 2 January 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.820.211(2)(a) because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 31 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and three witnesses.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

8. The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

   Hearing

9. The Tribunal is mindful that there were a number of significant inconsistencies in the applicant’s and sponsor’s evidence concerning their relationship. This caused the Tribunal to question the applicant’s credibility and the accuracy of his evidence. These were discussed with the applicant in accordance with s.359AA of the Act. The Tribunal informed the applicant that it wished to put new information that it would consider being the reason or part of the reason for affirming the decision. The Tribunal explained the relevance and the consequences of the information to the applicant and invited the applicant to comment on or to respond to the information. The Tribunal told the applicant that he may respond to the information orally or in writing. The applicant was also informed that he may seek additional time to comment on or respond to the information.

10. The applicant chose to respond to the inconsistences in evidence given by the parties in writing. The Tribunal granted the applicant three working days to respond from the 31 August 2017.

11. The Tribunal put to the applicant in accordance with s.359AA that there were inconsistencies in his evidence and the sponsor’s evidence in relation to their financial arrangements.

    ·The applicant stated that the sponsor deposited her Centrelink payments into her own personal account. The sponsor stated that she deposited her Centrelink payments into the couple’s joint account.

    ·The applicant response to the above is that the couple’s bank account had been hacked and they requested the bank to investigate and all their income and bills were diverted to their Commonwealth Bank account. The applicant further states that the sponsor deposited her Centrelink payments into her personal account because of the hacking incident and her evidence of the payments being deposited into the joint account are based on previous statements provided to the Tribunal as evidence.

12. The Tribunal put to the applicant in accordance with s.359AA that there were inconsistencies in his evidence and the sponsor’s evidence in relation to their living arrangements when they were living together in Canberra between the period April 2016 and January 2017.

    ·The applicant gave evidence that he was living and working fulltime in Canberra five days per week. The sponsor said she couldn’t remember when the applicant moved to Canberra to live with her but they lived together for about a month or so.

    ·The applicant responded stating that he moved to Canberra in April 2016. Further stating that his mother became ill and was hospitalised at Nepean Hospital from April to May 2016 and he shared the caring for his mother with his sister. The applicant also that his wife suffered a fractured knee and he was sharing his time between Canberra and Sydney.

13. The Tribunal put to the applicant in accordance with s.359AA that there were inconsistencies in his evidence and the sponsor’s evidence and the applicant’s witnesses in relation to their social activities together.

    ·The applicant told the Tribunal that the parties did not go out together because they had no finances. Witness one told the Tribunal that he socialised with the parties every weekend at the Rooty Hill RSL. The second witness told the Tribunal that the parties did not visit the RSL all that frequently. The sponsor said that the couple went to the RSL fortnightly.

    ·The applicant responded that due to financial difficulties the parties do not go out often alone but go out with family members often and they go to the Rooty Hill RSL when they can financially afford to.

14. The Tribunal put to the applicant in accordance with s.359AA that there were inconsistencies in his evidence as to when he was living in Canberra with the sponsor which did not reflect withdrawals in his bank account.

    ·The Tribunal brought to the attention and questioned the applicant as to why his bank statements showed a considerable amount of withdrawals from the couples joint bank account in a number of suburbs in Sydney when he was supposed to be living in Canberra.  

    ·The applicant states that the withdrawals occurred during the time he was travelling back and forth between Canberra and Sydney and that he obtained some part time work from a family member and was working in those suburbs at the time. Further stating that bank statements indicated that he also withdrew money in Canberra.

15. The Tribunal considered the explanations given by the applicant in relation to the inconsistence’s in evidence given by the parties and has given the applicant the benefit of the doubt and accepts the explanations presented by the applicant.  

    Whether the parties are in a spouse or de facto relationship

16. Clauses 820.211(20(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

17. ‘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 husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

18. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided as evidence a copy of the marriage certificate registered in the state of New South Wales on 8 December 2014. There is no evidence before the Tribunal to indicate that the marriage is not valid. 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 spousal relationship met?

19. In forming an opinion whether they are in a marital relationship and in considering whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together and not separately and apart on a permanent basis as defined in s.5F(2)(b)-(d), the Tribunal has regard to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the applicant’s and sponsors household and their commitment to each other as set out in r.1.15A(3).

20. After careful consideration of all of the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3), and the reasons for its decision.

21. The Tribunal had the benefit of the applicant’s, the sponsor’s and three witnesses’ oral evidence at the hearing and found their evidence at times inconsistent but overall credible. The Tribunal gave all the evidence provided by the parties and witnesses’ at the Tribunal hearing and evidence provided by the applicant to the Department in the primary application and Tribunal file due regard. 

    Financial aspects

22. The Tribunal has considered the financial aspects of the relationship. The parties provided as evidence a joint lease agreement, joint gas bill and joint bank account statements in the applicants and sponsors names. The parties’ evidence is that they utilise the joint account to buy groceries, paying rent and other household expenses. The sponsor is currently unemployed and the applicant is the sole income earner. The parties stated that they have no savings, no major assets or joint liabilities together. There is limited evidence of the parties sharing or pooling financial resources. The Tribunal places little weight on this aspect of the relationship.        

    Nature of the household

23. The Tribunal has considered the nature of the household. The couple gave detailed and consistent evidence about their living arrangements and the Tribunal is satisfied that they live together. The applicant and the sponsor spoke about the cooking, doing household chores. They provided consistent evidence of their living and rental arrangements and details about their daily activities. The parties provided additional documentary evidence in joint names such as utility bills, tenancy agreement and have advised government authorities about their marital status. Tribunal accepts the parties live together and that they have established a joint household. The Tribunal is satisfied that they share the household duties and responsibilities.

    Social aspects

24. The Tribunal has considered the social aspects of the relationship. There are statements from third parties attesting to their belief that the relationship is a genuine one. There is photographic evidence of the couple’s social activities with family and friends. The Tribunal accepts the applicant and the sponsor plan and undertake social activities together with family and friends and represent themselves as being in a marital relationship to other people. The parties stated that they have travelled together and that they attend church and community meetings together on a regular basis. The Tribunal is satisfied that friends and relatives view the relationship as a genuine and committed one.

    Commitment

25. The Tribunal has considered the parties commitment to each other. The parties’ evidence is that they have been a relationship since November 2013 and have been living continuously together since December 2014. To date, the relationship has lasted for nearly four years.

26. The applicant told the Tribunal that he had made the sponsor the beneficiary of his superannuation.

27. The applicant stated that he wanted to complete his trade studies and course at TAFE and possibly build his own home or eventually purchase a home with the sponsor. The sponsor said she wished to start a family with the applicant and purchase their own home. The Tribunal accepts that the applicant travelled between Canberra and Sydney caring for and supporting his mother when hospitalized and caring and supporting the sponsor who had a fractured knee at the same time.

28. The Tribunal notes that the applicant and the sponsor were able to articulate the reasons for their decision to form a relationship and spoke of their common interests and expectations. The Tribunal is satisfied the parties provided each other a strong degree of companionship and emotional support that is commensurate with a couple being in a spousal relationship. The Tribunal is satisfied the couple view their relationship as a long term one.

    Findings

29. The Tribunal is satisfied, having regard to the totality of the circumstances and the evidence provided that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together and not separately and apart on a permanent basis. Having considered all the evidence and circumstances of the relationship   as detailed above, the Tribunal is satisfied the parties were in a spousal relationship at time of application.

30. The Tribunal is satisfied that the sponsor is not prohibited from being a sponsoring partner and continues to sponsor the applicant. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision was an Australian citizen who had turned 18.

31. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.

32. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221(1)(a).

33. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

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

    ·cl.820.211 and cl.820.221 of Schedule 2 to the Regulations.

    Russell Matheson
    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).