SESAY (Migration)

[2019] AATA 5976

SESAY (Migration) [2019] AATA 5976 (16 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Makula SESAY

VISA APPLICANTS:  Mr Mohamed Doussou Conde
Mr Ibrahim Conde

CASE NUMBER:  1812855

DIBP REFERENCE(S):  BCC2014/3569771

MEMBER:Kira Raif

DATE:16 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 16 September 2019 at 12:55pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Court remittal – concerns little time spent together since marriage – parties represent themselves to others as in married relationship – plan and undertake joint social activities – shared housework – mutual commitment to shared life as married couple to exclusion of all others – genuine and continuing relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211, 309.221

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 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) is a national of Guinea, born in December 1985. He applied for the visa on 29 December 2014 on the basis of his relationship with his sponsor, the review applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 and cl. 309.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

4. On 6 July 2017 the Tribunal (differently constituted) affirmed the decision under review. The review applicant sought judicial review of the delegate’s decision and the matter was remitted by the Court for reconsideration by the Tribunal.

5. The review applicant appeared before the Tribunal on 16 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the couple’s friend. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

6. At the time the application was made, 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.

7. 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

8. ‘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?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The visa applicant provided with his application evidence that he and the sponsor registered their marriage in Guinea in January 2014. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied that 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?

10. The Tribunal has considered all the circumstances of this relationship.

11. There is a large volume of documentary evidence before the Tribunal concerning different aspects of the relationship. The Tribunal is mindful that the delegate was concerned about the limited amount of evidence presented with the primary application and there is substantially more evidence before the Tribunal. While much of it is dated after the application and after the primary decision, there is also evidence that relates to the earlier aspects of the relationship, in particular, evidence of the couple’s communication with each other.

12. There is extensive photographic evidence relating to the wedding and the couple’s social activities during the review applicant’s visits to Africa. There are many statements from third parties, including from relatives and friends and the visa applicant’s work manager. The Tribunal accepts that the relationship is socially recognised and that the couple represented themselves to others as being in a relationship. While the review applicant only made two visits to Africa since the parties committed to the relationship, the Tribunal accepts that during these visits, the couple socialised together when the visa applicant was not working. The Tribunal accepts that they represent themselves to others as being in a married relationship. The Tribunal accepts they had planned and undertaken joint social activities.

13. The Tribunal is mindful that none of the review applicant’s family members attended the wedding. The review applicant explained that this was due to the expense of travel and also that her mother was looking after her brother, who has special needs, and could not travel. There appears to be very limited evidence of any support for the relationship from the sponsor’s family.

14. The Tribunal has considered the nature of the household. The parties’ evidence is that by the time the review applicant left Africa in 2006, there was no de facto or other relationship between them and they considered themselves as boyfriend and girlfriend. The contact resumed in 2012 and the relationship started around 2013 or 2014. The review applicant had spent little time with the visa applicant since that time. She travelled to Africa in 2014 and spent about two months with the visa applicant and again in 2017 when she claims her intention to spend a year with the visa applicant but she had to return to Australia for the Tribunal hearing. The review applicant claims she could not travel due to the Ebola outbreak but it seems to have been under control before 2017. The review applicant also refers to the expense of travel and the Tribunal accepts that this may have affected the review applicant’s capacity to visit the visa applicant more frequently. The Tribunal also acknowledges that the visa applicant has made two applications for visitor visas which had been unsuccessful.

15. The Tribunal finds that the time the couple have spent together was minimal. Since the review applicant left Africa in 2007, the couple spent about four months together and the review applicant’s evidence to the Tribunal is that the visa applicant was working during her visits to Africa. The Tribunal accepts however, that during these visits, the couple did socialise together and spent time with family members and also shared the housework. The visa applicant and the review applicant gave consistent evidence about their plans for the future, including living arrangements, if the visa is granted.

16. The Tribunal has considered the financial aspects of the relationship. The delegate noted that the visa applicant referred to receiving financial assistance from the sponsor during his interview but he presented no evidence of such support when the application was made. There is considerable evidence of financial transfers before the Tribunal. However, the review applicant’s oral evidence to the Tribunal is that the transfers started in 2017. Most of the documentary evidence post-dates the primary refusal. The review applicant also explained to the Tribunal that she had sent money to the visa applicant and he had sent money to her. It is unclear to the Tribunal why there is any need for the parties to send money to each other to show financial support and such exchanges, as well as their timing, suggest to the Tribunal that the transfers were arranged for the purpose of the visa application.

17. The Tribunal has the same concerns with the review applicant’s evidence that the couple had jointly purchased a property in Guinea and opened a joint account, given that they have no intention of living in that country. The Tribunal acknowledges that there a substantial amount of documentary evidence concerning the financial aspects of the relationship but the Tribunal has formed the view that the financial evidence has been prepared for the purpose of the visa application.

18. The Tribunal has considered the parties’ commitments to one another. The relationship has been in existence since about 2013, for a lengthy period of approximately six years. The review applicant spoke about the emotional reliance on her husband and the need for support from him. The Tribunal accepts that the parties provide each other with comfort and emotional support. Both spoke about their attempt to have a child and the Tribunal accepts that they intend to start a family in the future. That may be an indication that they view their relationship as a long term one.

19. The visa applicant displayed thorough knowledge of the review applicant’s circumstances in oral evidence to the present Tribunal. The Tribunal is mindful that the delegate expressed concerns about his lack of knowledge of the sponsor’s circumstances at the primary interview and it may be that the visa applicant learned information about the review applicant for the purpose of the Tribunal hearing. Nevertheless, the Tribunal acknowledges that such knowledge exists.

20. The Tribunal has a number of concerns about this relationship. In particular, the Tribunal is concerned that the parties had spent very little time together since forming a commitment to this marriage. The Tribunal has formed the view that the financial evidence has been prepared for the purpose of the visa application and the Tribunal also notes that there was minimal evidence submitted with the primary application and considerably more evidence is before the Tribunal, which might also indicate that such evidence was prepared for the purpose of this visa process. Nevertheless, the Tribunal acknowledges the substantial amount of documentary evidence, as well as broadly consistent and detailed oral evidence of the parties to the present Tribunal. The Tribunal has decided to place greater weight on such evidence than the deficiencies in evidence outlined in this decision and by the previous Tribunal.

21. On balance, the Tribunal is satisfied the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied the relationship between them is genuine and continuing. The Tribunal is satisfied they do not live separately and apart on a permanent basis. 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 the time of this decision. Therefore the visa applicant meetscl.309.211 and cl.309.221. The Tribunal has not made any assessment about the secondary applicant’s dependence on the visa applicant.  

    Conclusion

22. 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 309 visa.

    DECISION

23. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member