Turay (Migration) - [2024] AATA 206

Turay (Migration) [2024] AATA 206 (7 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Morris Turay
REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)
CASE NUMBER:  1822578
HOME AFFAIRS REFERENCE(S):          CLF2018/212203
OSF2012/096756
MEMBER:David Crawshay
DATE:7 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

Statement made on 07 February 2024 at 12:37pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – genuine and continuing relationship before family violence – evidentiary requirements – joint transaction account – inconsistent shared residence – sponsor’s relationship with a third party – social media recognition of another relationship – mutual and exclusive commitment to a shared life – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 57, 65, 359
Migration Regulations 1994, Schedule 2, cl 100.221; r 1.15
CASES
Almomani v MIBP [2020] FCA 264
Cao v MIAC [2007] FMCA 225
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 Home Affairs on 30 July 2018 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 November 2012 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner). The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221(4)(b) because the delegate was not satisfied that the applicant would have satisfied the requirements of cl.100.221(2) except that his relationship with the sponsor had ceased. In making this decision, the delegate did not go on to assess the applicant’s claims of family violence under cl.100.221(4)(c)(i).
It is not entirely clear whether the applicant in fact made a claim of family violence at the Department stage. While he alleged that he had endured “psychological trauma” and continued “to suffer mentally” in a letter of 22 December 2017 and had provided a psychologist’s report dated 21 May 2018 in which the author wrote that the applicant “alleged that he has suffered from psychological abuse/trauma perpetrated by his ex-wife”, he did not provide the required information to engage the provisions in Division 1.5 of the Regulations, including the documents under legislative instrument IMMI12/116 which was in operation at that time. In any case, however, the applicant has not provided any further information that would satisfy the evidentiary requirements for a claim of family violence and, as such, he does not meet the family violence exemption under cl.100.221(4)(c)(i).
The delegate also refused to grant the visa of Ms Makesa Fofana. Ms Fofana was included as a secondary applicant to the application and made a combined review application with the applicant. However, on 11 October 2022, the Tribunal accepted the withdrawal of her review application. The reason for her withdrawal was that she had been granted a Subclass 820/801 visa as a primary applicant. At that point, she was no longer considered as a secondary applicant in this review application and no decision will be made in respect of her.
The present review has been the subject of three separate hearings:
·The first hearing, conducted on 9 February 2023, proceeded as a directions hearing owing to the fact that an interpreter in the Mandingo and English languages was not present despite the applicant claiming to require an interpreter.
·The second hearing (initial hearing), conducted on 1 March 2023, proceeded with the assistance of an interpreter in the Mandingo and English languages. At this hearing, the applicant gave evidence and presented arguments. The Tribunal also received oral evidence from the sponsor as well as from several other witnesses – being Mr Sekou Fofana, Ms Mimi Gadjeah and Mr Morris Kamara.
·The third hearing (resumed hearing), conducted on 5 April 2023, also proceeded with the assistance of an interpreter in the Mandingo and English languages. At this hearing, the applicant gave evidence and presented arguments. The Tribunal also received oral evidence from the sponsor and from Ms Makesa Fofana, as well as oral submissions from the applicant’s representative.
The applicants were 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 applicant is the spouse of the sponsor at the time of this decision.
Were the parties are in a spouse or de facto relationship?
Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cll.100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the “sponsoring partner”. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the “sponsoring partner” is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, a “sponsoring partner” within the meaning of that term.
“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 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. Each of the specific matters contained in r.1.15A(3) is effectively a question 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 Tribunal has sighted a copy of a certificate for a marriage issued by the Republic of Guinea and dated 31 August 2009. It is satisfied that the document is genuine and that the parties were free to marry each other. 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).
Non-disclosure certificate
In a letter dated 5 August 2022, the Tribunal made the applicant aware of the existence of a non-disclosure certificate made under s.376 of the Act. After having received submissions from the applicant’s representative and having considered the content of the folios to which the certificate referred, which were movement records for Mr Ousman Sackor (whose relationship with the sponsor was already an issue in the review given findings made by the delegate), the Tribunal exercised its discretion to disclose the folios in full.
Accordingly, the Tribunal handed the applicant a copy of the folios at the directions hearing on 9 February 2023. In doing so, it considers that it has appropriately balanced its disclosure obligations to the applicant under s.359A and s.360 against its obligation under s.376 to keep certain information from being revealed for public interest reasons.
The representative’s email of 9 January 2024
The applicant’s representative wrote to the Tribunal via email of 9 January 2024 wherein she relevantly stated as follows:
Should the Tribunal intend on making an adverse decision then a further hearing must be called to allow the Applicant and Sponsor to address any residual concerns given the delay in making the decision following the hearings on 1 March 2023 and 5 April 2023.
[emphasis in original]
While the Tribunal acknowledges the length of time taken to consider the information in front of it and decide the matter, it does not agree to convene a further hearing as sought by the applicant’s representative. Convening a further hearing may be appropriate in some circumstances including where a new dispositive issue has been uncovered and needs to be put to the applicant. However, the Tribunal does not consider it appropriate in the present matter where no such circumstances exist. Having said this, it was always open to the applicant to submit further information to be considered against the definition of “married relationship” in s.5F(2) of the Act and the matters in r.1.15A(3) of the Regulations if such information existed. It notes, however, that no information has been provided since a statement from the applicant dated 13 April 2023.
For the reasons given above, the Tribunal will not be calling a further hearing.
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship
No evidence has been provided to show that the parties jointly own any real estate or other major assets, that they have any joint liabilities, or that either party owes any legal obligations in respect of the other party. These aspects are given no weight.
Turning to the extent of any pooling of financial resources, it has been claimed in a submissions letter dated 16 August 2022 that the parties continue to pool their resources “for their joint future together”. The submissions letter pointed to a joint ANZ bank account, and the Tribunal notes that account statements covering most of the period from December 2021 to February 2023 have been tendered in support of this claim. These statements are annotated to distinguish the parties’ incomes – the applicant’s income being paid by his employers; the sponsor’s income comprising cash deposits and some transfers from third parties. The Tribunal accepts that the parties have been contributing to this account, which has increased from just under $1,000 in April 2020 to $51,646 in February 2023.
Lastly, in relation to the basis of any sharing of day-to-day household expenses, the Tribunal has considered the aforementioned bank statements which are also annotated to show who carried out what transaction. Furthermore, in most cases, the statements themselves show which card was used to carry out the transactions, and a photocopy of the cards were provided. The transactions in question include payments for groceries, petrol, insurance and entertainment.
The Tribunal has considered the above evidence and finds that the parties have been contributing to a joint transaction account. It finds that they pay for transactions from this account, some of which would benefit both. The Tribunal accords substantial weight to this evidence.
The Tribunal finds that the financial aspects of the parties’ relationship point in favour of the parties being in a genuine and continuing relationship at the time of this decision.
Nature of the household
No claims have been made that the parties have any joint responsibility for the care and support of children. This aspect is accorded no weight.
In terms of the parties’ living arrangements, the Tribunal has considered the evidence in front of it, including bills and other correspondence from the bank, the applicant’s driver licence, and from insurance and utility companies addressed to one or both parties at an address in Sunshine, some of which are recent. It accepts based on this information and on a lease agreement for the Sunshine address dated 7 December 2015 that the parties are living under the same roof at that address.
At the initial hearing, the applicant told the Tribunal that the parties live at the Sunshine address with Ms Makesa Fofana and her husband. He said that Mr Ousman Sackor does not live there anymore, although he was living there in 2017 when the applicant claims to have moved out. When asked, the applicant told it that he did not know for how long Mr Sackor stayed there after he left in 2017 because he was avoiding the house. The applicant stated that the Sunshine address was a three-bedroom house.
The Tribunal has considered a printout of messages and calls between the parties from 30 June 2021 to 10 August 2022. It finds that the messages contained in the printout are mainly short and the call logs mainly feature missed call notifications. It has also considered five screenshots of infrequent calls made between the parties in the period from 15 March to 26 June 2022 but finds that most of these calls are for less-than-two minutes.
The Tribunal has considered the information in front of it when assessing the parties’ living arrangements including correspondence addressed to the parties at the Sunshine address, the lease agreement over that address from December 2015 and the above communications records. While it accepts based on this information that the parties live under the same roof at the Sunshine address and may communicate with each other, albeit infrequently at times, it is not satisfied that they have been doing so as members of a genuine spousal relationship. In coming to this finding, the Tribunal relies on findings made elsewhere in this decision about the sponsor carrying on a relationship with Mr Ousman Sackor. As a result of this finding, the Tribunal accords little weight to this evidence as being indicative of a genuine spousal relationship and is not satisfied that the parties’ living arrangements are anything more than those between housemates.
The Tribunal accepts the claims made in documents pre-hearing and at the initial hearing about the parties sharing housework – namely, that the applicant cleans the house and mows the lawns, whereas the sponsor cooks and attends to the laundry. However, it is not satisfied that this aspect is indicative of a genuine spousal relationship given the findings made elsewhere about the sponsor carrying on a relationship with Mr Ousman Sackor. In light of this, it considers that the pattern of sharing of housework is redolent of two housemates.
The Tribunal finds that the nature of the household does not indicate that the parties are in a genuine and continuing relationship at the time of this decision.
Social aspects of the relationship
The Tribunal has considered information relating to whether the parties represent themselves to others as being in a married relationship. It has considered photographs of the parties at their wedding, which it notes was attended by third parties, as well as other, more recent photographs – most of which depict the parties on their own but some of which were taken with third parties. It has been able to ascertain that one of these third parties is Ms Fofana, although no information has been provided that would allow it to identify the other third parties and how they know the parties.
The Tribunal has also considered claims made by the parties about the social aspects of their relationship. In a statement dated 10 August 2022, the applicant wrote that the parties go out for dinner, always attend community meetings, weddings, baby-naming ceremonies and community barbecues together, and have been to weddings in Adelaide and Brisbane “on multiple occasions”. In a statement dated 10 August 2022, the sponsor wrote that the parties are known socially as a couple, that they have been to Adelaide and Brisbane on numerous occasions to attend weddings, funerals and other community events. She listed three joint friends and their telephone numbers. She stated that the parties often go out for dinner.
The Tribunal has considered other information, such as submissions made on behalf of the parties by the applicant’s representative. In the aforementioned submissions letter of 16 August 2022, the representative relevantly provided as follows:
The couple are known by their friends, family and community as a happily married couple. The community is aware of their marriage, working to reunite the couple so that they could resolve their difficulties and continue with their union. Their families are aware of their marriage, including the Sponsor’s biological mother and her adopted family and the Review Applicant’s niece. Friends who support the couple are also aware of their relationship and happy that they have resolved their differences. Socially, the couple are known as a married couple, attending a variety of events together including meetings, weddings, birthdays, baby naming ceremonies and funerals.
[references to annexures omitted]
At the initial hearing, the applicant spoke in similar terms, telling the Tribunal that most of the time he attends naming ceremonies, barbecues and weddings with the sponsor.
The Tribunal has considered the information in front of it including the above information and makes the following findings. While it accepts that photographs of the parties’ wedding show that they represented themselves to guests at that wedding as being married to each other, it also notes that this event occurred almost 15 years ago and is of little relevance to the social aspects of the parties’ relationship at the time of this decision. In terms of the more recent photographs, the Tribunal accords very little weight to these as being indicative of the parties representing themselves to others as being in a married relationship as it has not been able to ascertain the identities of the third parties (other than Ms Fofana) and how they know the parties.
The Tribunal has considered the findings made above regarding whether the parties represent themselves to other people as being married to each other. It finds that while the parties may have represented themselves to some people as evidenced by some photographs, it is far from clear whether they have done so as members of a genuine spousal relationship. This aspect is given very little weight.
The Tribunal has considered several social media posts from Facebook that contained photographs of the sponsor with Mr Ousman Sackor and posts from the sponsor and from third parties. In a letter dated 9 February 2023 to the applicant pursuant to s.359A, the Tribunal relevantly provided as follows:
The Tribunal became aware of documents on the Department file (CLF2018/212203) that comprised several screenshots of Facebook posts depicting the sponsor, Ms Alicia Sackor, and Mr Ousman Sackor in familiar poses. Some of these posts have accrued numerous “likes” from third parties. These screenshots appear as Annexure A and Annexure B to this letter.
The Tribunal notes the Department’s s.57 “natural justice” letter dated 13 December 2017 stated that “open source social media information held indicate that your sponsor is in an ongoing relationship with Ousman SACKOR and this relationship predates your relationship and marriage”. Nevertheless, the delegate’s decision of 30 July 2018 (a copy of which you provided to the Tribunal) does not refer to this “open-source social media information”. It therefore cannot be said that this information falls under the exceptions provided in s.359A(4)(b) relating to information that an applicant gave for the purpose of the application for review, or s.359A(4)(ba) relating to information that an applicant gave during the process that led to the decision that is under review.
As such, the Tribunal considers that it is obliged to put this information to you formally under s.359A of the Act for your comment or response.
In addition, the Tribunal has annexed to this letter as Annexure C a document containing further screenshots of Facebook posts. It considers that it is obliged to also put this information to you formally under s.359A.
The particulars of the information are therefore as follows:
•Screenshots of social media posts on Facebook in Annexures A, B and C show the sponsor and Mr Ousman Sackor in familiar poses, or contain comments by the sponsor alluding to her love for Mr Ousman Sackor, or contain comments by third parties alluding to the sponsor and Mr Ousman Sackor being in a relationship, or show evidence of people “liking” the posts. It is noted that these posts are dated as early as May 2010.
This information is relevant because it suggests that the sponsor and Mr Ousman Sackor have been in a relationship for an extended period of time, have represented themselves to other people as being in such a relationship and are regarded by third parties, including friends and acquaintances, as being in such a relationship.
The consequences of the Tribunal relying on this information when making its decision may be that it finds that you and the sponsor:
•do not have a mutual commitment to a shared life as a married couple to the exclusion of all others, as is required under s.5F(2)(b) of the definition of “married relationship”; and
•are not in a genuine and continuing relationship, as required under s.5F(2)(c) of the meaning of “married relationship”.
You may therefore be found not to be the spouse of the sponsor at the time of this decision.
This would be the reason, or a part of the reason, for affirming the decision that is under review.
This may mean that you are refused the visa for which you have applied.
[emphasis in original]

Annexures A, B and C accompanied the letter. The annexures comprised screenshots of Facebook posts from 2010 to 2017.
On 23 February 2023, the Tribunal received an email from the applicant’s representative which attached statements of the same date from the applicant and sponsor. In his statement, the applicant relevantly stated as follows:
I was shocked when I saw the pictures given to me at the Tribunal direction hearing and the further annexure emailed to me after the direction hearing. I asked Alicia why she didn't tell me about these posts and comments earlier. She replied that she believes that it was not important as she no longer had an intimate relationship from time to time with Ousman and in our culture, you cannot tell such things to your husband.
When I arrived in Australia, Alicia wanted me to be part of her business but, I told her that I am not a businessperson. I wanted to be a Disability Support Worker as I already completed the courses for my qualification. After our discussion, we agreed that Ousman and Alicia would continue working in the shop as Alicia cannot afford the shop rent alone. As they continued in the business together, they continued to take business trips together when I was in Australia.
It wasn't until three years after my arrival, as detailed in my previous statement, I was told by a member of the community that Alicia had a relationship with Ousman. But when I confronted her with the issue, she denied it. Alicia has told me that her reason for denying having a relationship with Ousman is because she considers it as something that happened in the past and, in our culture, this is not something that you talk about with your husband.
I believe that Alicia no longer has an intimate relationship with Ousman. After the community settled our conflict, they assured me that there is no more relationship between Alicia and Ousman and that was the reason why I moved back home in 2018.
[paragraph numbers omitted]
The sponsor relevantly stated as follows in her statement:
Because Morris already knew that Ousman is my business partner, I thought that those comments on Facebook were compliments or in gest [sic] and would not cause any harm. I also thought that the pictures of us together on business trips were harmless as we were overseas on business trips.
On the Facebook posts and pictures, these were harmless comments and were posted in gest [sic] or for fun. I always thought that it didn't mean anything to make those posts and comments. The majority of the photos that I took with Ousman were taken during our business trips. There are some photos takes with Morris in them at community events.
[paragraph numbers omitted]
The Tribunal has considered the information in front of it, including the s.359A letter dated 9 February 2023 (and accompanying annexures) and the parties’ statements dated 23 February 2023 in response to that letter. It finds that the applicant’s statement does not directly engage with the effect of the Facebook posts on the social aspects of the parties’ relationship. In contrast, it finds that the sponsor’s statement engages with this issue, with the sponsor seeking to minimise the effect of the photographs and comments as being “compliments”, “in gest”, “for fun” or “harmless”.
However, the Tribunal rejects this submission. While it agrees that comments can be posted in jest, including ones that assert a relationship where none exists, it does not consider that this is the case here where the sponsor’s comments accompany photographs over an extended period showing her and Mr Sackor in familiar poses (such as where they are holding hands, or where the sponsor puts her arm around him or her head on his shoulder or both) and where third parties give effusive and glowing endorsements of the relationship. Among such endorsements is one from John Brima on a post from 2 April 2017 (refer page 9 of Annexure C) where he stated as follows in relation to a photograph of Mr Sackor:
I love your photos and you shine like morning stars. Ousman Saccoh,you made a very good choice.Alicia is the best for you.I admire you two couples and I rate you 100% fit.God bless you abundantly.Mr Brima.
[errors in original]
The Tribunal does not consider that this endorsement is made in jest or “for fun”. Rather, it finds based on the tone of the comment that it represents Mr Brima’s genuine and earnest belief about the sponsor’s relationship with Mr Sackor.
The Tribunal finds that the information contained in the Facebook posts in Annexures A, B and C – namely, photographs showing the sponsor and Mr Sackor assuming familiar poses, posts from the sponsor professing love or admiration for Mr Sackor, and posts from third parties that offer endorsements of their relationship – points firmly to the sponsor and Mr Sackor representing themselves as being in a relationship and this relationship being recognised by others.
Based on the findings made above, the Tribunal finds that the sponsor and Mr Sackor had been representing themselves to third parties on a major social media platform as being in a relationship with each other and that these third parties had recognised them as being in such a relationship. It finds that these social media posts began in 2010 and only ceased after the applicant was notified by the Department in December 2017 of the existence of open-source social media information indicating that the sponsor was in an ongoing relationship with Mr Sackor. It places substantial adverse weight on this aspect when considering the social aspects of the parties’ relationship.
In relation to the opinion of the parties’ friends and acquaintances about the nature of the relationship. the Tribunal has considered declarations and other statements from third parties. In addition to declarations provided in 2012, to which the Tribunal gives very little weight as they are more-than-10 years old (and are therefore not representative of the social aspects of the parties’ relationship at the time of this decision), the parties have provided Form 888 statutory declarations from Ms Mimi Sandy, who described herself as a close friend of the sponsor, dated 23 November 2016; Mr El-Hadj Seikou Sackor, who described himself as having known the applicant since back in Africa, dated 25 November 2016; Mr Mohammed Dolley, who wrote of having known the applicant when they were in the same compound in Conakry, Guinea, dated 7 January 2023; and Mr Morris Kamara, who wrote of having known the applicant in Nzerekore, Guinea, dated 7 January 2023. A letter dated 14 April 2020 was also provided by Mr Sekou Fofana in his role as President of the Mano River Association of Victoria, as was a letter dated 14 April 2020 from the sponsor’s mother, Ms Salewoud Jallah, a letter dated 15 August 2022 from Ms Mimi Gedjeah (whom the Tribunal considers is also Mimi Sandy), and two letters from Ms Makesa Fofana – the first dated 15 August 2022 and the second 9 January 2023.
In her declaration of November 2016, Ms Sandy wrote of her belief that the parties’ relationship was genuine and continuing because they have never had a problem in their relationship. She wrote about how they love each other and do everything together. She wrote about how the applicant was a very committed husband and the sponsor was very happy in their relationship. In his declaration of November 2016, Mr El-Hadj Seikou Sackor wrote of his belief that the parties’ relationship was genuine and continuing because the applicant had always been there for the sponsor. He said that the sponsor had never signalled any problem in the parties’ relationship and that the applicant wished to get a full-time job to support his family. He said that the applicant had mentioned to him of the parties’ plan to undergo IVF treatment to conceive a child after he gets a full-time job.
The Tribunal has considered these declarations and accords them some weight, although it notes that they are from November 2016 – or over seven years ago at the time of the initial and resumed hearings. As a result, it diminishes the weight accorded to them as they are unlikely to reflect the opinion of the authors at the time of this decision.
In his declaration of January 2023, Mr Dolley wrote of the parties’ love having grown stronger since their “conflict” was resolved in 2018. He said that he speaks with them regularly and that they were much more mature and well-settled. He wrote about how he often spoke to them about their future plans and goals and about how they were planning to buy their first house this year. In his declaration of January 2023, Mr Morris Kamara wrote that he spoke to the parties regularly and they both constantly express their satisfaction and affection for each other. He said that he is one of the first people to know about the applicant’s problems with the sponsor, but that since their conflict was settled in 2018 the parties had been very happy with each other and were planning to buy their first house soon.
While acknowledging the contents of these declarations and the length of time that the authors claim to have known the parties and the applicant in particular, the Tribunal notes that Mr Dolley lived in Queensland and Mr Kamara in South Australia at the time of signing the declarations. Therefore, while both authors claim to speak to the parties regularly, the Tribunal still has concerns about the depth of insight that these authors would have into the nature of their relationship if the authors were not able to see them and interact with them in person on a regular basis. These declarations are accorded little weight as a result.
The Tribunal has considered the letter dated 14 April 2020 from Mr Fofana in his capacity as President of the Mano River Association of Victoria but finds that it deals almost exclusively with the process that led to the parties reuniting after their estrangement in 2017/2018 and does not offer an opinion about the parties’ relationship. It is given little weight as a result.
The Tribunal has considered the letter dated 14 April 2020 from Ms Jallah, the sponsor’s mother, although this letter offers very little insight into the parties’ relationship and it is not clear whether Ms Jallah has seen the parties (or at least the applicant) since the applicant was introduced to her by the sponsor in August 2014. For these reasons, the letter is accorded very little weight.
The Tribunal has considered the letter dated 15 August 2022 from Ms Gadjeah. Ms Gadjeah wrote about the process that led to the parties reuniting. She wrote about having attended a restaurant with the parties on a few occasions. She wrote about how the sponsor had told her that the parties were planning to buy a house and have children. She wrote about the parties seeming to be much more mature now than what they were at the earliest stage of the marriage. The Tribunal accords some weight to this letter.
The Tribunal has considered the two letters from Ms Makesa Fofana. The letter from August 2022 is similar in content to the letter from Ms Gadjeah, in that she wrote about the process of reuniting the parties and their wish to buy a house and start a family. Ms Fofana also wrote that she was not aware of any conflict or quarrel between the parties since the resumption of their relationship. She said that she would know about any conflict as she was always the first person to know if they ever quarrelled or had a conflict. In her letter of January 2023, Ms Fofana sought to confirm that the parties continued to be happily married. She said that they attended community and social events together, including her baby-naming ceremony in November 2022. She said that they had invited her and her husband to their house on a few occasions. The Tribunal gives some weight to the contents of these letters.
The Tribunal has considered testimony given by the witnesses at the initial and resumed hearings. It heard from Mr Sekou Fofana that he saw the parties every time there was a meeting. He said that the parties had been in a good relationship and he wanted them to be together. He said that, at the moment, everything was fine. Ms Gadjeah told it that the parties were a good couple. She said that she saw the sponsor when she was getting her hair done and she sometimes saw the applicant on the weekends. She said that they love one another and were a wonderful couple. Mr Kamara told the Tribunal that the parties’ relationship had been going well since they were reunited in 2018. He said that they had attended a burial ceremony in Adelaide in 2019. He said that he would speak to them on a regular basis, and that they have affection towards each other. When asked to specify the source of the parties’ conflict, he initially said that the applicant did not go into detail before then saying that the applicant told him, but he did not remember. Finally, Ms Makesa Fofana told it that the parties are hoping to have children and a happy home.
The Tribunal has considered the testimony from the witnesses but finds that there are concerns, which are as follows:
·Mr Fofana appears to be known to the parties through the community and not as a mutual friend, and there is no evidence to show that he sees them other than at community meetings. His insight into the parties’ relationship is necessarily limited;
·As above, Mr Kamara is living interstate and is unable to offer an opinion based on seeing and interacting with the parties in person. Moreover, it is concerned with the shifting testimony he gave during the resumed hearing about the source of the conflict between the parties;
·While the Tribunal accepts that Ms Gadjeah might be in a position to offer a considered insight into the parties’ relationship, being a close friend of the sponsor, it considers her testimony to be generic at best, offering very little upon which to base an opinion that the parties’ relationship is genuine and continuing; and
·Similar to the situation of Ms Gadjeah, the Tribunal accepts that while Ms Fofana might be in a position to give a considered insight into the parties’ relationship as a niece of the sponsor, she offered only a short and generic response to why she considered the parties’ relationship to be genuine and continuing.
Owing to these concerns, the testimony of the witnesses is given only some weight.
The Tribunal has considered the specific claim that the parties’ relationship is known to the community through the community working to reunite them so they could “resolve their difficulties and continue with their union”. It notes that the parties have made claims that they were the subject of a mediation or reconciliation process that was presided over by elders in the community. In his statement of 10 August 2022, the applicant relevantly stated as follows:
We had few issues with our relationship from mid-2017 up to December the same year. The issue escalated when we received a call from the Immigration early December 2017. After the call, my wife thought that I was the one who complained to the immigration accusing her of having an affair with Ousman Sacker the son of her adoptive mother who is also her business partner.
We had been having some issues before but after the phone call, I had to leave the house to avoid things becoming out of control.
After several attempts, our community leaders and elders succeeded in organising a meeting between us to resolve the problem. Community members and elders present in the meeting made it clear that Alicia is an integral part of the Sackor family. After extensive discussions, we acknowledged that neither of us had acted the best over the last few months and decided to move on.
From 1/12/2018, our relationship has improved significantly since that time and we continue to be committed to our marriage.
[paragraph numbers omitted]
The Tribunal notes that the sponsor wrote in similar terms in her statement of the same date. It also notes the testimony of Mr Sekou Fofana who claimed at the initial hearing to have presided over the process. While it had some concerns about the claims about the meeting having taken place based on what it perceived as an inconsistency over the number of meetings involved in this process, it accepts for present purposes that there was at least one meeting involving the community. The Tribunal accords some weight to this aspect. However, given the findings made below that the sponsor’s relationship with Mr Sackor has more-than-likely continued despite this reconciliation process, it diminishes the weight given to the process and the involvement of third parties in it as evidence of the social aspects of the parties’ relationship at the time of decision.
The Tribunal has considered information regarding the opinion of the parties’ friends and acquaintances about the nature of their relationship. However, and owing to concerns it has outlined above including concerns about the sponsor’s relationship with Mr Ousman Sackor being recognised by third parties on Facebook, it finds that the information is not overall indicative of the parties’ relationship being recognised by their friends and acquaintances as being genuine and continuing.
Turning lastly to the basis on which the parties plan and undertake joint social activities, the Tribunal has considered the various claims made by the parties and third parties, and on the parties’ behalf by the applicant’s representative, including in the submissions letter of 16 August 2022 quoted above. It has also considered screenshots of text messages from Mr Mohamad Keita including invitations to meetings and other community events. It accepts that the parties may attend events together such as weddings and community meetings and other engagements, although it also notes the comments of the applicant at the resumed hearing that everyone gets together in the community. The Tribunal finds based on this that the parties are part of a close community and as such might be expected to attend these events on that basis alone regardless of whether they are in a relationship. This is not an adverse finding, rather a finding that, without more information, these claims are given little weight as evidence that the parties represent themselves to others as being in a married relationship, that their friends and acquaintances regard them as such or that they plan and undertake joint social activities.
The Tribunal finds that the social aspects of the relationship point against the parties being in a genuine and continuing relationship at the time of this decision.
Nature of the parties’ commitment to each other
The Tribunal has considered the duration of the parties’ relationship. In this regard, it accepts the claims made by them that they were introduced through a third party in 2008 and were married in August 2009 in Guinea. While it would ordinarily accord substantial weight to evidence showing that the parties had been married for over 14 years, it does not do so in this matter where there is compelling evidence that the sponsor had been conducting a relationship with Mr Ousman Sackor over an extended period and where it is more-than-likely that this relationship continues. Instead, it places very little weight on this aspect.
Similarly, and for the same reason, the Tribunal gives minimal weight to the length of time during which the parties have been living together.
Turning to the degree of companionship and emotional support that the parties draw from each other, the Tribunal has considered information including the contents of relationship statements made by the parties on 10 August 2022 and 23 February 2023. In his statement from August 2022, the applicant relevantly stated as follows:
In general we are really enjoying life together. Every couple has it up and down but besides we are really happy together. We live together at our usual address. Alicia loves cooking whenever she is free and we really enjoy dinner at home. But at least once a week we go out for dinner mostly at a Lebanese restaurant because we both like Lebanese dishes. We plan to buy our first house by the end of next year 2022 and plan to have our first child right after that.
Our feeling for each other is much stronger now as we have known each better and we have both learn a lot after the moment of turbulence that our relationship has been through. We are working very well together and as a team, looking forward to owning our own home and having children. I really cant wait to be a dad and raise our children with my wife.
[paragraph numbers omitted; errors in original]

In her statement from August 2022, the sponsor relevantly stated as follows:
In general Morris and I enjoy life together. Every couple has its up and down but In general we are happy together. We often go out for dinner and we always attend community events such as meetings, weddings, baby naming ceremonies and barbecues together unless he he is working or I am working. We often attend weddings and funerals in interstate together. Our biggest challenge now is to save enough money for our loan deposit to purchase our first house.
Our feeling for one and other is stronger today as we are mentally more mature now than we were few years ago and we have learned a lot after going through some difficult times m our relationship. We hope that Morris' visa is granted as soon as possible so that we can continue with our lives as a happily married couple.
[paragraph numbers omitted]
In his statement from February 2023, the applicant relevantly stated as follows:
Since we have resumed our relationship, we have been happily married. We have lots of plans for our future together, as we have explained before.
Alicia and I are committed to our relationship and our future together.
[paragraph numbers omitted]
In her statement from February 2023, the sponsor relevantly stated as follows:
Morris and I are in an exclusive, genuine and continuing spousal relationship. I love Morris and I hope we can continue our life together and achieve our future goals.
[paragraph numbers omitted]
The Tribunal has considered submissions provided on their behalf by the applicant’s representative. In a letter of 16 August 2022, the then-representative relevantly stated as follows:
The Review Applicant and Sponsor are committed to their future together and their family life in Australia. They have a much stronger relationship following their reconciliation from December 2018, with plans to buy a home and start a family. As detailed in their statements, they look forward to their future as a married couple in Australia.
[paragraph numbers omitted]
While the Tribunal notes these claims and submissions, it has also considered other evidence that points to the sponsor carrying on another relationship with Mr Ousman Sackor before and after the applicant’s arrival in Australia in 2014 and up until recently.
First, and based on admissions made by the sponsor in her statement of 23 February 2023 and the applicant in his statement of 22 December 2017, the Tribunal finds that the sponsor was involved in an intimate relationship with Mr Ousman Sackor. Although she wrote in this statement that she ended this “intimate aspect” of her relationship with Mr Sackor in early-2014 before the applicant entered Australia, and while she repeated this claim under questioning at the resumed hearing, the Tribunal finds based on the posts from Facebook (which have been dealt with above in the context of the social aspects of the relationship) that she carried on this relationship after 2014. In coming to this finding, and again based on findings it has made elsewhere, it rejects the claims made by the sponsor that her relationship with Mr Sackor reverted to that of business partners after the applicant arrived in Australia and specifically that she “did not have any relationship with Ousman after Morris’s arrival”. It finds that this claim does not stand up when faced with evidence in the form of the Facebook posts.
Secondly, there is information that points strongly to the sponsor having travelled on a two-month trip with Mr Sackor in 2022. At the resumed hearing, and after having heard from the sponsor that she went on a two-to-three month trip to Turkey in 2022 where she denied having met Mr Ousman Sackor, the Tribunal put to the sponsor movement records showing that she and Mr Sackor travelled to a port in the Middle East on flights with the same flight number, albeit on different days (Mr Sackor on 12 July 2022; the sponsor on 14 July 2022), and returned from the same port in the Middle East on flights with the same flight number, albeit on different days (the sponsor on 17 September 2022; Mr Sackor on 20 September 2022). The sponsor said that if Mr Sackor travelled overseas, it was for personal reasons. She reiterated her claim that she did not meet him overseas.
At this point, the Tribunal asked the sponsor where Mr Sackor travelled to, to which she responded that she did not know. It then put to her that, as his business partner, she would know where he was travelling. She replied that she and Mr Sackor used to travel together to buy stuff. The Tribunal asked her why she would not know where he was travelling if she was his business partner, to which she replied that it is very hard to know where he went if they did not plan a trip together.
The Tribunal suggested to the sponsor that she knew where Mr Sackor went because it was the same place where she went. The sponsor reiterated that she and Mr Sackor did not plan any trip and did not go together. At this point, the Tribunal suggested to the sponsor that as Mr Sackor’s business partner, she could obtain evidence about where he travelled to, to which she replied that she did not know. When it repeated its suggestion that she could obtain such information in the form of an itinerary showing where Mr Sackor went to, the sponsor said that she was not aware of his trip. When the Tribunal put to her that it could draw adverse inferences from the absence of evidence to show the details of Mr Sackor’s travel given that it would be a very simple exercise in gathering this information, the sponsor told it that she does not have the itinerary. The Tribunal put to the sponsor that she would have that evidence on email, to which she replied that she was not aware of Mr Sackor’s travel.
The Tribunal put the sponsor’s and Mr Sackor’s movement records to the applicant.[1] He said that if the sponsor had met someone overseas he would not know. When it suggested to him that the evidence told it that the sponsor’s relationship with Mr Sackor had continued, and that he had been willing to endure it or were blind to it, he replied that he was not aware of any relationship and had not observed or seen any relationship.
[1] The Tribunal had indicated during its questioning of the sponsor that it would put the information to the applicant under s.359AA of the Act. However, given that the two movement records were not by themselves information that would be the reason, or a part of the reason, for affirming the decision under review, and only took on significance when the information was synthesised, this information was not put to him under s.359AA but was instead disclosed under the Tribunal’s hearing obligation in s.360: Almomani v MIBP [2020] FCA 264, [47]. It communicated this to the applicant and his representative at the resumed hearing.
At the conclusion of the resumed hearing, the Tribunal requested the travel itinerary from Mr Sackor, and allowed 14 days in which to provide that evidence.
In a post-hearing statement dated 13 April 2023, the applicant relevantly stated as follows:
During the Tribunal’s hearing on 5 April 2023, the Tribunal member requested that I provide a copy of the Ousman’s travel itinerary.
After the hearing, I tried to call Ousman several times but had no response.
As a result, I contact Mohamed Keita, a member of the community, to contact Ousman for me regarding providing a copy of his travel itinerary.
Mohamed was able to get into contact with Ousman, who informed us that he no longer had a copy of the travel itinerary that was requested.
Mohamed is our community Accountant manager and secretary, and his best number for contact is [ ].
[telephone number omitted]
The Tribunal has considered the information in front of it relating to the issue of the sponsor’s travel in 2022, including the movement records of her and Mr Ousman Sackor that showed a similar pattern of travel, the parties’ testimony during the resumed hearing, and the above statement from the applicant.
In doing so, the Tribunal has specifically considered the lack of evidence of Mr Sackor’s eventual outbound destination on or just after 12 July 2022 and the place where he boarded his first flight back to Australia on or just before 20 September 2022. It finds that such evidence should be able to be provided even if, as stated by the sponsor, it was personal travel – not least because Mr Sackor and the sponsor are business partners, having an interest in the same shop out of which they claim to operate. This could also be achieved by requesting the travel agency or airline company in question to provide a copy of the travel itinerary. It notes the applicant’s claim in his statement of 13 April 2023 about not being able to contact Mr Sackor himself and accepts that this might be true and that he engaged a member of the community to seek the information on his behalf. However, the onus is on the applicant to make his own case, including gathering information from third parties. In any case, the claim that Mr Sackor no longer had the itinerary in question was relayed to the applicant through Mr Keita and was thus third-hand information by the time it reached the Tribunal. It is given minimal weight as a result. The Tribunal draws adverse inferences from the fact that no itinerary or other details have been provided for Mr Sackor’s trip in 2022 despite its requests.
The Tribunal’s request for an itinerary showing Mr Sackor’s eventual outbound destination and the place where he boarded his first flight back to Australia was in response to serious doubts it had. While these doubts were initially based on movement records showing the sponsor and Mr Sackor taking the same flights to and from a Middle Eastern port, albeit on different days, they increased following the Tribunal’s questioning of the sponsor at the resumed hearing. In particular, the Tribunal finds it implausible that the sponsor would not know the details of Mr Sackor’s trip in 2022 given that they are business partners and given the nature of the travel, which involved him being overseas and away from the shop that he shares with the sponsor for more-than-two months. It notes that in an interview with the Department on 12 December 2017, the sponsor initially stated that she travelled alone to Guinea, China and India before admitting that she travelled with Mr Sackor when confronted with adverse information. It reasonably believes that the sponsor was again seeking to conceal adverse information when she gave vague and evasive answers to questions about her and Mr Sackor’s travel in 2022 at the resumed hearing. For the reasons given above, the Tribunal also draws adverse inferences from the sponsor’s lack of a substantive or plausible response to its questions at the resumed hearing.
Given the absence of evidence of Mr Sackor’s trip in 2022, given the absence of any plausible reason for the sponsor as his business partner not knowing these details, given that the sponsor has already admitted to the existence of an intimate relationship between her and Mr Sackor up until 2014, and given the evidence showing that this relationship continued beyond 2014 despite denials by the sponsor, the Tribunal considers it reasonable to conclude that the sponsor did not reveal these details because they would confirm that Mr Sackor and she travelled to-and-from the same overseas location, albeit on different days.
Based on the findings made above, the Tribunal’s finds that the sponsor and Mr Sackor spent an extended amount of time overseas in 2022 and in doing so, that they continued a relationship that has run through almost the entire period of the sponsor’s claimed relationship with the applicant.
The Tribunal is mindful that evidence of mere infidelity on the part of one party does not necessarily mean that he or she is unable to meet the definition of spouse.[2] However, in light of:
·the sheer length of the sponsor’s relationship with Mr Sackor;
·the depth of feeling expressed by the sponsor in her comments on posts involving Mr Sackor – wherein she variously describes him as her “great hsb”, “[t]he world [sic] greatest man” and “super man”;
·the familiar poses adopted by the sponsor and Mr Sackor in the photographs;
·the fact of the relationship being represented to third parties via social media, and
·the clear recognition of the relationship by others – including, in his statement of 22 December 2017, the applicant himself,
the Tribunal is not satisfied that the relationship between the applicant and sponsor is mutually exclusive. It accords substantial weight of an adverse nature to evidence of this relationship between the sponsor and Mr Sackor and finds that the weight accorded to this aspect outweighs other information, including the claims made by the applicant that he and the sponsor are committed to their relationship and by the sponsor that she and the applicant are in an exclusive, genuine and continuing spousal relationship.
[2] Cao v MIAC [2007] FMCA 225, [36] (Riley FM, 21 March 2007).
The Tribunal is not satisfied that the parties draw anything more than a very small degree of companionship and emotional support from each other.
The Tribunal deals lastly with the question of whether the parties see their relationship as a long-term one. In doing so, it has considered the claims of the parties that they had been pooling their finances in order to come up with a deposit on a house. Evidence in the form of statements from the parties’ joint bank account shows that they have both been contributing to this account, which has risen in funds since it was opened so that they now have a considerable sum of money. While the Tribunal would ordinarily give great weight to evidence of this type, it finds that such weight is not enough to overcome the adverse weight it has accorded to other aspects of the relationship.
Additionally, while the applicant has claimed in his statement of 10 August 2022 that he was looking forward to having children with the sponsor, a claim that was also made by several witnesses, the documentary evidence on file is not sufficient to substantiate the claim. Specifically, although the applicant has provided a letter dated 23 May 2022 containing the results of a pelvic ultrasound, it is unclear what the purpose of this ultrasound was and whether it was for fertility reasons or for other diagnostic reasons. The claim is given little weight.
The Tribunal finds that the nature of the parties’ commitment to each other does not indicate that they have a mutual commitment to a shared life as a married couple to the exclusion of all others, or that their relationship is genuine and continuing, at the time of this decision.
CONCLUSION
The task of assessing whether the applicant has been the spouse of the sponsor at the relevant time involves weighing the evidence in front of the Tribunal before balancing that evidence against itself. While there is some evidence that the parties have pooled their financial resources, and while they have been living under the same roof for most of the time that the applicant has been in Australia, this must be weighed against other evidence that suggests that the parties’ commitment not mutual and that their relationship is not genuine and continuing. Such evidence includes compelling evidence showing the continuation of the relationship between the sponsor and a third party – Mr Ousman Sackor – beyond 2014 and an acceptance of this relationship by friends of the sponsor. In the end, this evidence has been given decisive weight.
Having performed the mandatory exercise of considering all the circumstances of the parties’ relationship including the matters set out in r.1.15(3) of the Regulations in relation to the definition of “married relationship” under s.5F(2) of the Act, and based on the above evidence and findings, the Tribunal is not satisfied that the applicant is the spouse of the sponsor at the time of this decision. Specifically, it is not satisfied that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others or that the relationship between the parties is genuine and continuing.
Therefore, while s.5F(2)(a) is met by virtue of the parties being married to each other under a marriage that is valid for the purposes of the Act, ss.5F(2)(b) and (c) are not met. Because of this, the Tribunal finds that the parties are not in a married relationship under s.5F(2), and the applicant is not the spouse of the sponsor pursuant to s.5F(1) at the time of this decision.
Therefore, the applicant does not meet cl.100.221(2)(b). The applicant has not made any claims in relation to any of the alternative subclauses under cl.100.221.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.
David Crawshay
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).