Sesay (Migration)

Sesay (Migration) [2017] AATA 3108 (6 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Makula Sesay
VISA APPLICANTS:  Mr Mohamed Doussou Conde
Mr Ibrahim Conde
CASE NUMBER:  1610647
DIBP REFERENCE(S):  BCC2014/3569771
MEMBER:Jennifer Cripps Watts
DATE:6 July 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 06 July 2017 at 4:01pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Married relationship – Travel movements – Dependent relative – Financial future – Family attendance to wedding – Declaration of relationship to the public – Level of commitment – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15A, Schedule 2 cls 309.211, 309.221
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 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).
The first named visa applicant (the visa applicant) applied for the visa on 29 December 2014 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.309.211(2).
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) because the delegate was not satisfied the parties were in a spouse relationship within the meaning of s.5F of the Act.
The review applicant appeared before the Tribunal on 27 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, by phone from Guinea, Africa.
The review applicant was represented in relation to the review by her registered migration agent, Houssam Hayba, Migration Agent Registration Number 0001536.
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 parties are in a married relationship satisfying s.5F of the Act when considered against the guideline criteria contained in r.1.15A of the Regulations.
Whether the parties are in a spouse or de facto relationship
Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.
‘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 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 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.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. A certified translated extract from marriage certificate declarant on the Department file indicates that the parties, Mohamed Doussou and Makula Sesay, were married on 19 January 2014 at 4.08pm in Conakry, Guinea. The Tribunal accepts, relying on this document, 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 spousal relationship met?
The parties claim to have met in Conakry, Liberia when the review applicant was still at school and the visa applicant was attending university. Six months later, the review applicant migrated to Australia on a [permanent] visa on 27 June 2007 to join her mother, who had arrived in Australia earlier.
The review applicant has travelled offshore twice since 2007:
a.To Liberia from 2 December 2013 to 18 February 2014, during which time the parties married each other; and
b.To Guinea/Liberia on 26 January 2017 to 21 March 2017 (although it is noted that the review applicant informed the Tribunal that she intended to stay offshore until October 2017, but returned for the Tribunal hearing)
The relationship between the parties is claimed to have commenced in 2007 and developed to the extent that on 1 December 2012, having not met again in person for five years, they decided to reconnect, started communicating and, a year later, in December 2013, committed to a shared life with each other and were married about a month later. There is little evidence to support this claim and the Tribunal gives little weight to it. There is no reliable evidence that the parties communicated with each other in the six months from when they claim to have met to the date of the review applicant’s departure for Australia.
The decision to commit to a shared life together in early 2012 was said to have been facilitated by the visa applicant’s uncle, Mory Kourouma, who lives in Guinea, and the review applicant’s brother, Freeman Sesay, who lives in Australia – it is claimed by the parties that the two men are friends. No documentary evidence was provided to support this and the Tribunal does not give this much weight either. In addition, there is little evidence that the parties had communicated with each other leading up to the decision to commit to a future together in early 2012.
Nearly a year after claiming to have committed to a future together when the parties were both residing in different countries, with the assistance of their relatives in their respective countries of residence, the review applicant travelled offshore, on 2 December 2013, and the parties were married about seven weeks later in Liberia, on 19 January 2014. The review applicant returned to Australia a month after the marriage. The review applicant was 24 years of age and the visa applicant 29. At the time of their marriage, the parties had not seen each other in person for nearly eight years, on the basis of the claim they made that they first met in 2007. However, as the Tribunal is not satisfied that there is reliable evidence that they did actually meet in 2007 or maintain contact in a manner that it could reasonably be expected of two people who, at some time after 2007, started to contemplate a long term future together, the date from which the Tribunal considers the claimed relationship to have commenced is 2012.
The Tribunal has concerns regarding the rapid development of the relationship leading to marriage and has considered the possibility that the marriage was facilitated for the primary reason of enabling the visa applicant and his younger brother/secondary applicant, Ibrahim Conde, to migrate to Australia. In addition, from the time of their marriage and the review applicant’s subsequent return to Australia on 18 February 2014, the parties did not see each other in person for nearly three years. The Tribunal was told and accepts that there was an ebola outbreak in West Africa in 2014 that lasted until 2016. In 2014, the visa applicant lived in Liberia, in late 2015 he moved to Mali for work. The parties gave oral evidence at the hearing that he and the secondary applicant now live in Siguiri in Guinea.
A cursory web search has indicates that in October 2014, the Australian government started putting in place restrictions on movements to Australia from affected countries, with regard to the situation in West Africa and restrictions on travel movements both in and out during the 2014, 2015 and 2016 ebola outbreak. According to the website, the World Health Organization declared the outbreak officially over in June 2016. The Tribunal places no negative weight on the review applicant not travelling to West Africa to see her husband during the ebola outbreak, as clearly that would not have been advisable and may have prevented her from returning to Australia, as there were travel bans in place. However, it is not considered that adequate explanation was provided as to why the parties did not attempt to see each other in a third country for three years. Even though the Tribunal understands that may not have been easy to arrange, it is not unreasonable to think they may, at the very least, have tried to arrange to meet during that time. When the travel ban was lifted, it was not for another seven months that the review applicant went to Guinea, in January 2017.
At the time of application, the secondary applicant was a few days away from his 16^th birthday. It is claimed that the parents of the visa applicants died in 2005 and 2007 – translated copies of their death certificates are on the Department file. The brothers claimed to have lived with Uncle Mory Kourouma in Conakry until 2011, when the visa applicant got a job in Bamaka, Mali, at which time he and the secondary applicant moved there together. Since 2011, the visa applicant claims that the secondary applicant has been wholly dependent on him. Ibrahim is, at the time of this decision, 18 years of age and it is claimed he is still dependent on the primary visa applicant and still attending school. The review applicant’s family lives in Perth and she says that she moved to Sydney from Perth about eight years ago.
The visa applicant has included one younger sibling, Ibrahim, as a secondary applicant in his partner visa application. The review applicant gave oral evidence the visa applicant has two other younger siblings, Kenda (brother, born 25/06/1989) and Oumou (female, born 29/09/1991, married and living in Liberia). The visa applicant declared in his visa application that he also has another brother, Sory Conde, born 13 May 1983, who is married and lives in Liberia. None of these three siblings are included in the visa application that is the subject of this review.
Financial Aspects of the Relationship
At the time of application, the parties provided no documentary information in support of the financial aspects of their relationship. At the time of the Tribunal’s decision, copies of two remittances sent from the review applicant to the visa applicant on 8 October 2016 and 22 January 2017 were provided, each for $1,400 Australian. The January 2017 remittance was sent four days before the review applicant departed Australia. It is accepted by the Tribunal that these two remittances were sent by the review applicant to her husband, but are not considered to show that the parties pool their finances.
The parties gave some consistent answers about their respective work and salaries and it is accepted that they have exchanged this information with each other. The visa applicant said at the hearing that he was aware that when the review applicant is not working she receives a Centrelink Newstart Allowance.
At the hearing, the parties were asked about discussions they have had for their financial future, including the education costs for the visa applicant’s dependent brother, their living expenses in Australia and also the cost of their airfares if the visas are granted. The parties are both of very limited means, on their evidence. The review applicant said that their plan is for the visa applicant to get a job and then they will save money to buy a three or four bedroom house and that they plan to do this in Sydney. Neither of the parties provided evidence that they currently have any savings, although the review applicant said the visa applicant has some savings, but she does not know how much. The visa applicant said that he has about 50,000,000 Guinean francs in savings and will use this pay for airfares if the visas are granted. No documentary evidence was provided and the Tribunal gives the claim that the visa applicant has 50,000,000 francs in savings minimal weight.
The Tribunal was not persuaded that the parties have had realistic and detailed discussions about their financial future and is concerned that they have not had proper regard to the reality of living in Sydney together as a married couple supporting a dependent relative. In addition, they seem not to be aware of the amounts each others’ claimed savings which the Tribunal reasonably expects they would know.
The review applicant said she receives government benefits when she is not working as a process worker, which she said pays around $800 a week and sometimes $1,000. She gave oral evidence that she started a nursing course a few years ago but couldn’t finish it because of financial responsibility to the visa applicant as he was not working and she supported him financially, but that he is working now in a gold mine in Siguiri in Guinea for a company called BME and earns around five million Guinean francs per month which the Tribunal, having used the online currency convertor at the hearing estimates to be about AUD700 at the time of this decision which was confirmed as being correct by the review applicant at the hearing.
The parties gave oral evidence that the secondary applicant will continue to study if he comes to Australia. At the time of this decision, he is 18 years of age. The Tribunal asked if they knew how much it would cost for him to undertake tertiary study and both said they did not know, but the review applicant said she intended to pay for it and at the hearing gave oral evidence that she has $2,000 in savings. Whilst the Tribunal considers it to be a generous thought, there was no reliable evidence that the parties have any idea of what costs might be involved in educating the secondary applicant or that they have made any inquiries in that regard, or that they have any firm plans about who will pay for it and how they will manage if the visa applicant does not find a job. No evidence was provided that he had made any inquiries about his employment prospects and it is clearly stated on the visa application (and was answered in the affirmative by the visa applicant to indicate he understood) that “…there is a two-year wait for social security payments, including unemployment benefits, for most newly arrived migrants (and) the applicants will need to have enough money, even if unemployed, to support themselves for the first two years and if they run out of money or fail to get a job in that period, that would not be sufficient reason to make them eligible for social security income support payments (and) approval to migrate does not guarantee employment in Australia and that is entirely their own responsibility to secure employment after arrival, including investigating their prospects before arrival in Australia.” There was no evidence before the Tribunal that the parties have a reasonable amount of savings that would support them through the migration process, or that the visa applicant has made inquiries about his changes of employment in Australia. The review applicant said at the hearing that she will look for a job for her husband when he arrives, maybe where she works or any other sort of work that is easy to get.
The Tribunal considers that the parties have not made proper plans for, at the least, their short term financial future which is not what might reasonably be expected of two married people who have the responsibility of financially supporting each other and a dependent relative.
Nature of the Household
The parties gave largely consistent evidence about each other’s households when the review applicant is in Australia and the visa applicant in Guinea or Mali and the Tribunal accepts that they have told each other about where they live when apart.
The parties claim to have resided together when the review applicant travelled to Liberia to get married and also went to Bamako, Mali together in December 2015. No evidence has been provided to substantiate these claims, other than the oral evidence of the parties themselves.
The parties claim to have lived together for about a month when they were married, in early 2014, in Guinea. No reliable evidence was provided at the time of application, nor has any evidence been provided at the time of this decision that gives insight into the parties sharing a household, for the month after they were married.
The review applicant recently spent two months in Guinea, from 26 January 2017 to 21 March 2017. She said that while she was there, she lived with her husband, they went places, visited friends, went to the market and bought food. The visa applicant said the same and added that they were trying to have a baby. He was asked who would pay for their cost of living if the review applicant had a baby and was not working and changed his answer to say that that they had a discussion, not so much the fact of having a child right now, but perhaps as a goal, which the Tribunal considers to be a completely different proposition his earlier statement that they were trying to having a baby when the review applicant was in Guinea for two months in early 2017. The Tribunal accepts the consistency of the parties’ statements about shopping and visiting friends. No evidence of a pregnancy has been provided and, on the self-contradictory oral evidence of the visa applicant, the Tribunal does not accept that the parties were in fact trying to have a baby in early 2017.
The review applicant’s departmental movement records confirm she has been offshore, but no other reliable evidence has been provided to substantiate the claim that they shared a household as a married couple while she was overseas. Some photographs were provided, undated and uncaptioned showing the parties together – in some they were kissing – but they are not in a social setting. The Tribunal has considered the photographs and oral statements and gives them limited weight as they are not supported by reliable substantiating evidence that indicates they lived together for the two month period in 2017 and established or shared a household.
The Tribunal then turned its mind to the parties’ future plans for their shared household as a married couple. If the visas are granted, they will share joint responsibility for the care and support of the visa applicant’s younger brother, who is 18, a student and, it is claimed, does not work and is wholly dependent on the visa applicant and has been for some years since their parents died. The review applicant said that her housing rental budget is around $380 or $400 a week and she has looked at a few two bedroom apartments online in Merrylands and Parramatta that she would like to apply for. The Tribunal accepts that she has done some online searches and that there are apartments available in that price range in the area she has mentioned.

However, the Tribunal is not satisfied, having considered the evidence provided, that the parties have established a household when the review applicant has been offshore on two occasions, each for about two months, or that they have had detailed discussions or made realistic and sensible plans for their future household of a kind that might reasonably be expected of a married couple who claim to have been committed to each other for a number of years, and who will share the responsibility of supporting the dependent brother of the visa applicant.
Social Aspects of the Relationship
At the time of application, the parties provided two Form 888 statements from the older brother of the review applicant, Freeman, who lives in Australia, and a friend of the review applicant, Alhaji Gamanga, who has not met the visa applicant in person. The Tribunal has considered these statutory declarations in support of the relationship and gives them minimal weight. Neither declarant has socialised with the parties together, nor did they attend the wedding.
No members of the review applicant’s immediate family attended the wedding in January 2014. Whilst the Tribunal acknowledges that it is a long way to travel from Australia to West Africa and expensive, it is nonetheless concerning that none of them made the trip to attend the review applicant’s marriage, which is her first.
At the time of this decision, no additional documentary evidence was provided addressing how the parties represent themselves to others socially as being married, any opinions of friends and acquaintances who have socialised with them together, or any evidence of social activities the parties have undertaken together and with others.
The Tribunal, on the evidence at the time of application and this decision, is not satisfied the parties represent themselves as being in a married relationship widely in the community. Although the Tribunal acknowledges that parties provided some wedding photos and the visa applicant has not been to Australia, as he still lives in West Africa, it is reasonable to expect that the parties would have provided evidence of their social activities with others when the review applicant has travelled to see her husband and they claim to have lived together. There have been no statements provided, or oral evidence given, by anyone other than the parties themselves, who attended the wedding in January 2014.
The parties confirmed they both have Facebook accounts and provided evidence of messenger chats they have had – it is accepted they chat to each other on Facebook. However, they were asked if they shared any photos of their wedding with Facebook friends and said they did not. The review applicant said they try to keep their private lives out of Facebook. Given the popularity of Facebook as a social media site, and the fact that the parties have accounts, their claim not to want to share things on it struck the Tribunal as somewhat inconsistent with the purpose of having a Facebook account as the main function of social media for its users is so they can create and share content. The Facebook evidence that has been provided is given weight that the parties communicate with each other through private Messenger from time to time, but not that they declare their relationship to their Facebook friends.
On the evidence, the Tribunal is not satisfied that the parties declare their relationship widely or that they enjoy or plan social outings with friends and family when the review applicant is in Africa, where many members of the visa applicant’s family and his friends live.
Commitment
The Tribunal has, when having regard to the nature of the parties’ commitment to each other, considered 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.
From the time of application to the time of this Tribunal’s decision, the review applicant has resided in Australia and the visa applicant in Africa. The parties claim to have met about 10 years ago, then met again in person when the review applicant travelled to Liberia in late 2013. On this trip, in January 2014, the parties held their wedding. The review applicant returned to Australia in February 2014 – she stayed for about two months. The parties did not then see each other in person until three years after their wedding, when the review applicant travelled to Liberia again, on 26 January 2017 and stayed for two months.
The parties claim to have been in phone contact between 2012 and 2014. The review applicant has provided the Tribunal with Optus phone records for her mobile [number], covering the period 16 June 2012 to 16 June 2014. The records were received after the hearing, on 29 March 2017, and the review applicant claims they are evidence of communication with the visa applicant. These phone records have been considered. About half the total calls appear to be various overseas numbers, which include country codes 224 (Guinea), 231 (Liberia) and 861 (China), the majority being to Guinea to about seven different numbers. It is accepted that the Optus records relate to the mobile phone number of the review applicant and that she made overseas calls during the period for which records have been provided. As the calls are to several numbers and there was no substantiating evidence provided that any of these numbers were the visa applicant’s or who participated in the calls, the phone records are given limited weight.
The parties, at the time of application and the Tribunal’s decision, provided screen shots of Facebook messenger conversations said to have taken place between them. The conversations are very short and, for the most part, are basic and cursory questions and answers. No other reliable evidence - other than the evidence considered and discussed in this decision - of the type of commitment the parties share, or how they provide each other with companionship and support has been provided to the Tribunal.
The parties claim to have committed to a shared life together in January 2012, over five years ago. Since then, the parties have spent two months together in around January 2014 and two months together in January 2017. On the evidence, and based on the lack of any additional evidence addressing the Tribunal’s concerns about the parties’ level of commitment to the marriage, the Tribunal is not satisfied that this level of personal contact is strong evidence that the parties are committed to their married relationship.
The Tribunal has reviewed the evidence contained on the Department file and considered the evidence in the Tribunal file, together with the oral evidence received at the hearing. On the evidence, having regard to the matters in r.1.15A(3), the Tribunal is not satisfied and that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that their relationship is genuine and continuing and that they live together or not separately and apart on a permanent basis.
The review applicant did not provide a copy of the Department’s decision to refuse the visas. The Tribunal has relied on its own de novo review of all the evidence to reach a decision in the matter and has not relied on the Department’s decision to reach this decision.
Given these findings the Tribunal is not satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship.
Therefore the visa applicant does not meet cl.309.211 or cl.309.221.
For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.
As the primary visa applicant does not satisfy the criteria for the grant of the visa, the decision to refuse the application for the second named visa applicant must also be affirmed.
DECISION
The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Jennifer Cripps Watts
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).

[2017] AATA 3108

6 July 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction