Vanegas (Migration)

Vanegas (Migration) [2020] AATA 6060 (9 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Miss Sandra Elizabeth Vanegas
VISA APPLICANT:  Mr Jose Arturo Cartagena Vasquez
CASE NUMBER:  1731225
DIBP REFERENCE(S):  BCC2017/4082880
MEMBER:Helena Claringbold
DATE:9 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
STATEMENT MADE ON 9 DECEMBER 2020 AT 5:33PM

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa – subclass 309 – parties provided inconsistent information about their relationship –Ministerial intervention request declined –mental health –credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 65, 359AA
Migration Regulations 1994, Schedule 2, cl 309.211
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 15 October 2015, Mr Jose Arturo Cartagena Vasquez, the visa applicant, applied for a Prospective Marriage (Temporary) (Class TO) (subclass 300) visa. The application was made on the basis on his relationship with Miss Sandra Elizabeth Vanegas, also known as Zandra Elizabeth Vanegas Cartagena and Zandra Elizabeth Vanegas, the sponsor and review applicant.
On 12 July 2016 the visa applicant notified the Department that he and the sponsor had married. He withdrew the prospective marriage visa application and requested to be considered for a Partner (Provisional) (Class UF) visa. Therefore, the 12 July 2016, is taken to be the date of application for the Partner (Provisional) (Class UF) visa.
On 9 November 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant and the sponsor are genuine spousal partners. Therefore, the visa applicant did not meet clause 309.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 11 December 2017, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision brought by the sponsor.
On 28 October 2020, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the sponsor’s son and Christine, a friend of the sponsors. The sponsor was represented by her migration agent. The Tribunal hearing was assisted by the services of an interpreter in the Spanish and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has an overall concern about the parties’ credibility. The sponsor provided inconsistent information about the parties’ relationship prior to the Tribunal hearing. At the Tribunal hearing the parties provided inconsistent information about their relationship and this is discussed below. The parties have not satisfied the Tribunal that they are credible.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.
ISSUE
The issue in the present case is whether at the time of application and this decision, the visa applicant is the spouse of the sponsor as defined in s.5F of the Act.
BACKGROUND ON THE EVIDENCE
The visa applicant was born in 1982 in El Salvador. His mother, stepfather and seven siblings live in El Salvador. On 11 March 1999, his de facto relationship with Ms Santos Lorena Garcia Cruz began. On 10 April 2002, Ms Garcia Cruz and the visa applicant separated. There is one child from this relationship born in 2001, who lives in El Salvador.
The sponsor was born in 1967 in Tenancingo, El Salvador. Her father is deceased. Her mother and six siblings live in Australia. In January 1995, her de facto relationship with Mr Oscar Tulio Cruz began. In March 2011, Mr Cruz and the sponsor separated. The sponsor declared having two children born in 1990 and 1996. Her children live in Australia. The sponsor entered Australia on 16 May 1991. On 26 January 1994, she was granted Australian citizenship.
The parties first met in 2015 via the social networking platform Facebook. They were introduced to each other by the visa applicant’s brother. In July 2015, the parties met in person in El Salvador. In October 2015, the visa applicant lodged an application for a Subclass 300 visa. On 12 July 2016, the parties married in a civil ceremony Suchitoto, El Salvador. On 24 July 2016, the parties married in a religious ceremony.
On 5 March 2020, the Tribunal wrote to the sponsor and advised her of the following.
Statements written in Australia by the applicant and the sponsor and third-party statements are to be provided as statutory declarations. The statutory declarations must be correctly witnessed and accompanied with identification documents for the authors, for example a certified copy of the person passport or birth certificate. Statutory declarations and third- party statements written by persons who do not write and understand the English language, are to be written in the persons own language. Documents not written in English must be translated into English by a translator with a current ‘Translator’ level certification and accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI) who is independent and not involved in or associated with the case under review. This includes any documents or information that the applicants consider relevant to their review that are on the Department of immigration and Border Protection’s case file and/or the Department of Home Affair’s case file and the Tribunal’s case file.
The foreign language certified statements and the English translated certified
statements are to be provided to the Tribunal. The statements must be correctly
witnessed and accompanied with identification documents for the authors, for example a certified copy of the person passport or birth certificate.
Translations provided by non-certified translators outside of Australia should be
endorsed by the translator with their full name, address, telephone number and details of their qualifications and experience in the language being translated.
Is the visa applicant the spouse of an eligible citizen?
The Tribunal is satisfied that the sponsor, at the time of visa application and at the time of this decision, was an Australian citizen.
Are the parties validly married?
At the time the visa application was made, the visa applicant provided evidence of his marriage to the sponsor. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
Are the parties in a spousal relationship?
‘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).
CLAIMS AND FINDINGS
Are the other requirements for a spousal relationship met?
In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
The financial aspects of the parties’ relationship
The sponsor’s income is derived from her salary and government benefits and the visa applicant’s income is derived from his employment as a seasonal and casual worker. In response to the visa refusal the sponsor stated the following: the parties agreed that they would support each other financially as needed but that had not been necessary for either of them to support the other. The visa applicant lives in his family’s home and doesn’t have regular expenses such as rent and utility bills. He is also aware of her financial responsibilities including her mortgage repayments and bills and supporting her son. However, the visa applicant paid for the parties wedding and she paid for the visa application. It is the parties’ intention to pool their resources and build assets when they have the opportunity.
In January 2020, the sponsor stated the following: she cannot support the visa applicant because of her mortgage payments and he can’t support her because he does not have the money. The visa applicant gave her $1,700 in cash when she was in El Salvador in 2016 to help with the visa expenses. She brought this money to Australia and used it when she and her mother went to El Salvador in 2019. The visa applicant and his family paid for the parties’ wedding ceremony and party and she gave the visa applicant new trousers and shoes. She contributed to the building of a bathroom at the visa applicant’s home and in 2019 left him $200 to repair the roof. She has nominated the visa applicant as her beneficiary on her superannuation fund. She provided copies of her bank statements and a copy of her superannuation fund nominating the visa applicant as a 35 percent beneficiary.
In October 2020, the sponsor stated the following: the parties discuss their financial arrangements and plan for their future together. When the visa applicant comes to Australia, they will open a joint bank account and will share financial matters and once employed the visa applicant will pay for expenses. She contributed $400 towards the building of a bathroom and has sent the visa applicant money and the visa applicant gives her cash.
In October 2020, the sponsor’s son stated the following: In 2011 when the sponsor’s relationship with his father broke down, they agreed to pay half of the mortgage payments. Halfway through 2011 his father stopped paying. His father also left a debt of $40,000. The sponsor has paid the mortgage payments and combined the debt into the mortgage loan. At the end of 2014, the sponsor borrowed against the mortgage to purchase a modified car for him valued at $15,000 to $28,000. In 2017, she settled with his father to remove his name from the property paying $15,000 to $20,000 and entered a new mortgage agreement with the bank. He has witnessed the sponsor struggle with these financial matters to ensure he has a home and to look after him and this restricted her sending money to the visa applicant.
The sponsor told the Tribunal that the visa applicant has a Western Union account with USA$85 in it. She stated that she sends the visa applicant USA$100 fortnightly. The visa applicant told the Tribunal that the sponsor gave him USA$300 in cash and sends him USA$100 or USA$50. Provided are copies of various Money Grams from the sponsor to the visa applicant’s mother and brother and various Western Union money transfers to the visa applicant.
The Tribunal discussed with the sponsor inconsistent information she provided about different aspects of the parties’ circumstances which is also inconsistent with the information put to the sponsor under s.359AA of the Act as detailed at paragraph 24, third dot point. The information discussed with the sponsor is as follows:
·In response to the visa refusal the sponsor stated that the visa applicant paid for the parties’ wedding and she paid for the visa application.
·In a statutory declaration dated 19 October 2020, the sponsor stated that the visa applicant and his family paid for the (wedding) ceremony and the wedding party and the parties covered the cost of the outfits for the wedding.
·The migration agent in her submission quotes the sponsor as stating that the parties covered the cost of the outfits for the wedding.
The sponsor responded and stated that the visa applicant received an inheritance from his uncle in order to organise the expenses for the wedding.
The Tribunal put information to the sponsor under s.359AA of the Act. The sponsor was told the relevance and consequences of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The sponsor sought and was granted additional time to respond. The information is as follows:
·The visa applicant told the Tribunal that the sponsor is paying for her house and has expenses including her car, a car for her son, electricity and water. He was unable to say what these expenses were and stated that the sponsor told him but he forgot. This information was put to the sponsor because she stated that she tells the visa applicant about her expenses and she gave a detailed account of what her expenses are.
·The visa applicant told the Tribunal the following: he uses the money the sponsor sent him to pay for food, to pay for the motorcycle and US$350 of the money was used to renovate a bathroom. This information was put to the sponsor as it was inconsistent with her evidence as follows: the money she sends is used for living expenses, to pay for the internet, to pay motorcycle payments, so that when she travels she will have money there and to pay for an airline ticket should the visa be granted.
·The visa applicant told the Tribunal the following: he and the sponsor each paid half for their wedding. He bought the wedding rings and the sponsor paid for the wedding. However, they shared the cost of the wedding celebration equally. This information was put to the sponsor as it was inconsistent with her evidence that the visa applicant paid for the wedding celebration.
In a post hearing submission, the visa applicant stated the following. He has difficulty understanding the sponsor’s finances particularly because of his limited education and the difference in lifestyles between Australia and his country. When the parties married there was a lot to do. His mother and sister helped ‘with some of that’. He does not remember exactly how much was paid but he thinks that he and the sponsor paid his mother for some food for the party. The sponsor stated the following. A lot was happening to get the necessary paperwork completed for the civil wedding and the church wedding and the wedding clothes. The parties did not keep records of the expenses to prove their relationship.
The Tribunal accepts that there are differences between the sponsor and visa applicant’s countries. However, the parties claim to have been in a relationship for many years and to speak every day and discuss their financial matters. The Tribunal understands that organising a wedding can be a demanding time. Yet, it expects that consistent evidence could be given about who paid for costs surrounding the parties’ wedding. Instead, the sponsor provided inconsistent evidence about who paid for the parties’ wedding and the visa applicant and the sponsor provided inconsistent evidence about these circumstances.
At the time of application and decision the parties do not have any joint ownership of real estate or other major assets or any joint liabilities or pooling of financial resources, especially in relation to major financial commitments and other than the visa applicant being nominated on the sponsor’s superannuation they have no legal obligation in respect of each other. The Tribunal accepts that the sponsor has sent some money to the visa applicant. However, the parties provided inconsistent information about their financial matters which led the Tribunal to question their credibility and not to accept that at the time of application and decision, the parties shared day-to-day household expenses.
The nature of the parties’ household
The sponsor lives in Australia with Oscar, her son. The visa applicant lives in his uncle’s home in El Salvador. In response to the visa refusal the sponsor stated the following: when she visited the visa applicant from 10 August 2015 to 31 August 2015, she spent a week with the visa applicant in his brother’s home. Then they travelled to his home and spent the remainder of their time there. From 30 June to 3 August 2016, the parties spent a couple of days at the visa applicant’s brother’s home and then about three weeks at the visa applicant’s home and then after their wedding spent another three days at the visa applicant’s brother’s home.
In November 2019, the visa applicant stated the following: In February 2019, the sponsor and her mother arrived and spent about six weeks with him. In December 2019, the sponsor stated the following: When the parties are living in the applicant’s home, they clean the house together. His mother lives next door and they share many family meals together. They shop for food for the visa applicant’s mother and sometimes help her cook.
In October 2020, the sponsor stated the following: From 10 August 2015 to 31 August 2015 and 1 July 2016 to 3 August 2016 and 14 February 2019 to 30 March 2019 she lived in the visa applicant’s home. They shared housework and all their meals are shared with his mother who lives nearby. All the family eat together including his brother, sisters-in-law, nieces and nephews and she assists with the cooking. The parties have discussed the sharing of housework and the visa applicant will do the maintenance.
The sponsor told the Tribunal the following. The parties lived a simple life. The visa applicant’s mother does the cooking with her daughter and provides most of the food. The parties wash the dishes and she did the washing for the visa applicant.
The Tribunal discussed with the sponsor inconsistent information she provided about different aspects of the parties’ circumstances as follows:
·In response to the visa refusal the sponsor stated the following: she visited the visa applicant from 10 August 2015 to 31 August 2015. She spent a week with the visa applicant in Mauricio’s home. The sponsor and the visa applicant then travelled to his home where he lived with the rest of the family and spent the remainder of their time there. This information is inconsistent with the information the sponsor provided in her statement of December 2019 and her statutory declaration of October 2020, where she stated the following: She met the visa applicant for the first time on 10 August 2015 and stayed two weeks at Mauricio’s home and then went to the visa applicant’s home.
·Whereas the visa applicant’s mother declared that she hosted the sponsor for two weeks in 2015.
The sponsor responded and stated that the parties lived for two weeks in Mauricio’s home and then lived for four to five days in the visa applicant’s mother’s home before returning to Mauricio’s home.
The Tribunal put information to the sponsor under s.359AA of the Act. The sponsor was told the relevance and consequences of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The sponsor sought and was granted additional time to respond. The information is as follows:
·The visa applicant told the Tribunal the following: that the sponsor’s first trip was 10 August 2016 (2015). He and the sponsor stayed with Mauricio for several days or approximately one week. They then went to his mother’s home. He then stated they went to the home where he lives (his uncle’s home) and they were there for five to six days. After this they went to Juanita’s a friend of the sponsor and stayed with her for almost a week before returning to Mauricio’s home. This information was put to the sponsor as it was inconsistent with her evidence as follows: on her first visit the parties first lived in Mauricio’s home for two weeks. They then lived between the visa applicant’s home and his mother’s home. She then stated that they stayed in the home that the visa applicant’s other brother Ever was building which is at the back of the visa applicant’s mother’s home. The Tribunal also noted that Imelda, the visa applicant’s mother writes in support of the parties’ marriage and stated that she hosted the sponsor when she visited in 2015 for two weeks

In a post hearing submission, the visa applicant stated the following. On the sponsor’s first trip he went with Mauricio and Ana and their son to pick the sponsor up. He didn’t think it important to identify the son. During the visit the sponsor stayed for three weeks. They spent part of the time with Mauricio and Ana and then went to his house. They shared their time between family members’ houses as his house is small and does not have a kitchen and at that time didn’t have a bathroom. It was a long time ago and he forgot the details. The sponsor stated the following. Her memory of the exact number of days the parties spent at different houses is unclear. It was an exciting time. Because it is five years ago there is inconsistency in the visa applicant’s and Imelda’s statements. However, the parties were together for three weeks.
The Tribunal considers it reasonable for the parties to be able to provide consistent information about where they lived together when the sponsor first visited the applicant, particularly as it is claimed that this visit represented a significant life event. Instead, the sponsor provided inconsistent information about this aspect of the parties’ relationship in information she provided prior to the Tribunal hearing. Further inconsistent information was provided at the Tribunal hearing about picking the sponsor up on her first visit and about where and with whom they had lived during the sponsor’s first visit. The Tribunal does not accept that the visa applicant thought it unimportant because the Tribunal specifically asked whether any children had gone to pick the sponsor up, collectively this inconsistent information led the Tribunal not to accept that the parties lived together as they have claimed.
The Tribunal put information to the sponsor under s.359AA of the Act. The sponsor was told the relevance and consequences of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The sponsor sought and was granted additional time to respond. The information is as follows:
·The visa applicant told the Tribunal the following. The sponsor works for two employers, one being Baptist Care and the other a hospital. She only works afternoons for Baptist Care. In the week before the Tribunal hearing she worked on Monday from 3:00pm to 9:00pm, she also worked on Tuesday and Thursday. In the week before the Tribunal hearing she also worked for the hospital on Monday from 8:00am to 1:00pm or 8:00am to 1:00pm. He didn’t think she worked on Wednesday and didn’t work on Thursday or Friday. This information was put to the sponsor as it was inconsistent with her evidence as follows: In the week before the Tribunal hearing she worked for Baptist Care on Monday from 8:00am to 12:30pm, Tuesday from 9:00am to 11:30am, Wednesday 8:00am to 1:30pm, Thursday 9:00am to 10:00am and went home because she was feeling unwell and didn’t work on Friday for them. In the week before the hearing she worked for the hospital on Tuesday, Wednesday, Thursday and Friday she worked from 3:00pm to 7:00pm.
·The visa applicant told the Tribunal the following. Because of COVID-19 the last time he worked was four months ago. This information was put to the sponsor as it was inconsistent with her evidence as follows: the last time the visa applicant worked was two weeks ago helping his neighbour fixing his roof.
In a post hearing submission, the visa applicant stated the following. When he said he had not worked since the pandemic started four months ago, he meant that he had not done the sewing work that the government pays him for. He is still doing odd jobs around the town and receives cash payments for the work. The sponsor stated it is harder for the visa applicant to understand her day to day life because he has not been able to visit. The migration agent argues that the parties speak every day and make efforts to summarise their daily life over the phone, however it is reasonable to expect that difficulties arise due to the fact that they are in a long-distance relationship.
While the Tribunal understands that the parties live in different countries, it considered the parties’ evidence that they communicate with each other every day and have done so for many years. While the Tribunal may accept the applicant’s explanation about the inconsistent information relating to his employment, it would expect that the parties would be able to provide reasonably consistent information about their employment. Instead, the visa applicant, other than stating that the sponsor worked for Baptist Care and a hospital, was unable to provide consistent information about the sponsor’s work routine in the week prior to the Tribunal hearing. What he was positive about was that she worked for Baptist Care only in the afternoons. However, the sponsor did not agree with this information as her evidence is that she worked for Baptist Care in the mornings and for the hospital in the afternoon.
The Tribunal put information to the sponsor under s.359AA of the Act. The sponsor was told the relevance and consequences of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The sponsor sought and was granted additional time to respond. The information is as follows:
·The visa applicant told the Tribunal the following. In 2019 when the sponsor visited, the parties stayed with his sister for four days. During their stay the people in the home were his sister and her husband and their son and Marlene (his sister’s mother-in-law) and the parties and one of Marlene’s daughters came to visit. This information was put to the sponsor as it was inconsistent with her evidence as follows. The parties stayed at Marlene’s home for one week with Marlene and her son and his partner and their child and two of Marlene’s daughters.
In a post hearing the sponsor stated the following. During her visit in 2019 the parties stayed with different relatives here and there. They didn’t keep a diary of where [they went] and when [stayed] and with whom [they stayed]. They took many photos and provided statements from people they stayed with. It is difficult to remember the number of days and to summarise them accurately.
The Tribunal is puzzled at this inconsistent information. They were unable to agree on the length of their stay and who they stayed with and the people who were also in the house.
At the time of application and decision, the parties do not have any joint responsibility for the care and support of children. While the parties claim to have lived together and to have shared some housework, the Tribunal does not accept this. The parties provided inconsistent information about where and with whom they lived in 2015 and 2019. This led the Tribunal not to accept that at the time of application or at the time of decision, the parties lived together as they claimed or that they shared housework.
The social aspects of the parties’ relationship
In response to the visa refusal the sponsor stated the following: all of parties’ individual family members, friends and associates were aware of the parties’ relationship from its inception. Initially the parties communicated via the visa applicant’s brother’s telephone. He purchased a telephone and installed Facebook messenger and because of cost, this is the parties’ preferred method for communicating. Various telephone/chat records have been provided. These are partly in English and in a language other than English which the Tribunal cannot read. They record communication between the parties and missed calls. Telephone bills dated 2020 for the sponsor’s son have been provided, these record calls to an El Salvador number ending 0531. Photographic evidence depicts the parties together and with others at different locations. In 2019, the visa applicant stated that in 2017, he created a WhatsApp account and the parties communicated through this medium.
In November 2019 the visa applicant stated the following: In February 2019, the sponsor and her mother arrived and spent about six weeks with him. They visited many tourist places including Guatemala to visit the sponsor’s uncle David and stayed with him for three days. The sponsor stated the following: In 2019, she and her mother visited the visa applicant as a surprise. At that time, he was working making shorts with his mother. When they finished, the parties and her mother travelled by bus to a family reunion in Tenancingo and El Pepeto. They then stayed in Guatemala with her uncle and his family and then visited another uncle and his family and went sightseeing with them. The parties then travelled to the visa applicant’s sister Brenda’s house and stayed with her for a week. During this stay Brenda and her mother-in-law took them to the mountains in Serro Verde. The parties also stayed with her friend Juan in San Martin. Various copies of travel documents for the sponsor have been provided. In the sponsor’s statutory declaration of October 2020, she provided basically the same information.
In third-party statements in 2017 and 2018, information has been provided including the following: a parish priest has known the sponsor and her family since 1996. The sponsor sought his advice and prayers. He vouches for the sponsors sincerity and desire to live with the visa applicant in Australia. They discussed the renewal of their vows in Australia to permit family and friends to celebrate the marriage. Jose Humber has known the visa applicant for eight years. He attests to him being responsible, moral and ethical with religious values and to the parties’ marriage. Jose and Josefina attest to the fact that the parties had pre-marriage catechism 15 days prior to their marriage. Jacobo and Julia attended the pre-marriage instructions and the parties’ marriage. Felix was present at the parties’ wedding. The parties have a stable relationship based on fidelity, understanding and love. Mauricio, the visa applicant’s brother introduced the sponsor to the visa applicant during a messenger call in 2015. She visited in July 2015 and stayed at his home. The sponsor visited the visa applicant and stayed in Mauricio’s home. She visited again and married the visa applicant and again stayed in his home. Imelda, the visa applicant’s mother writes in support of the parties’ marriage. She hosted the sponsor when she visited in 2015 for two weeks at her home and in 2016 the sponsor stayed in her home for three weeks. Joe Humber, a friend of the visa applicant writes of the visa applicant having strong ethical and religious values. Oscar, the sponsor’s son has known about the parties’ relationship from the beginning. The parties communicate daily. Jose, the sponsor’s brother supports the parties’ relationship. He has witnessed the sponsor communicating with the visa applicant and has spoken with him briefly on one occasion. In 2019, Oscar stated the following: It has been difficult to form a relationship with the visa applicant because of language. He constantly hears the sponsor talking to the visa applicant via Facebook or WhatsApp. She has visited the visa applicant three times. Maria Zoila, the sponsor’s mother, stated that the visa applicant asked her for permission to marry the sponsor. She supports the parties’ relationship. In 2019, she stated she has been in contact with the visa applicant and in 2019 she met him. At that time, they travelled together and did various activities. She believes the visa applicant to be an honest person. All declarants believe that the parties’ relationship is genuine.
In third-party statements in 2019, information has been provided including the following: German, a friend of the visa applicant attests to the legal marriage of the parties and witnessed their marriage. He attests to the integrity of the visa applicant’s character and his commitment to the church. Ana, the visa applicant’s sister-in-law attests to the parties meeting each other and visiting her home. She declared meeting the sponsor in 2014 via Facebook as there was a lovely relationship between them and to being a witness at their wedding and believes the parties’ relationship to be respectful and genuine. Christine, a friend of the sponsor’s has known the sponsor since 1991 when she arrived in Australia. She has known about the parties’ relationship from the beginning. The sponsor’s parish priest advised the sponsor to meet the visa applicant in person. The sponsor has shown her photos and videos of the visa applicant. They continue to communicate and the sponsor has visited the visa applicant. The sponsor has educated herself in child studies and aged care. She works two jobs to support herself and her son and pay her mortgage. Initially she was concerned that the sponsor may be taking a risk but over four years she has seen how committed they are to each other. Maria Juana, who has known the sponsor from childhood stated the following: between February and 15 March 2019, the parties spent with intervals days alone in the visa applicant’s home. Additionally, the sponsor was accompanied by her mother. Together they visited different tourist places including Tenancingo and visited relatives and friends. She noticed how affectionate the parties were with each other. Patrick, the sponsor’s son-in-law, has known the sponsor for 14 years. The sponsor has discussed her relationship with the visa applicant. He has not met the visa applicant but the sponsor has shown him photographs and he witnessed the parties speaking on the telephone. They helped care for the sponsor’s son when she travelled to be with the visa applicant. Jose Roberto has known the sponsor as a social worker since 1992. The sponsor and her family arrived in Australia as refugees and he has acted in a support role and is godfather to the sponsor’s son. The parties are in constant contact with each other and support each other. Dylan, a support worker for the sponsor stated the following: He has been in the sponsor’s home regularly since 2012 and knows her/them well. The sponsor often talks about the parties’ future plans. She has visited the visa applicant several times and he has seen numerous photographs of the parties. He believes the parties’ relationship to be genuine. Felipe, another declarant stated that he was witness at the wedding and is a neighbour. However, he does not identify either of the parties.
Oscar told the Tribunal the following. He has been aware of the parties’ relationship since 2015. The sponsor has travelled to El Salvador three times and the parties communicate with each other every day. He has spoken with the visa applicant and when he speaks about the parties’ relationship Oscar can tell they are partners. He provides emotional support to the sponsor and her life has changed for the better. Oscar has muscular dystrophy and does not have a long lifespan. He would like to know that the sponsor is safe and that the visa applicant can be with her and hopefully he can look after her.
Christine told the Tribunal the following. She has known the sponsor for a long time. She has shared the experience of Oscar’s diagnosis and is aware of his short life expectancy and the difficulties the sponsor faced. She attended bank meetings with the sponsor. The sponsor told her about the visa applicant, she told her to be careful. However, she has witnessed a change of attitude in the sponsor and in her ability to manage. She witnessed the sponsor talking to the visa applicant and is of the firm belief that their relationship is genuine.
The migration agent told the Tribunal the following. Oscar’s evidence should be given weight. Oscar has a limited lifespan and wants to see the sponsor in good hands. If the case is remitted the visa applicant could help Oscar and the sponsor in a family unit and provide moral support. Oscar believes the relationship to be genuine.
The Tribunal told the sponsor the following. The third-party statements she provided were primarily without the identification documents of the declarants and other documents are in a language other than English and cannot be read by the Tribunal. The chat and telephone records she provided have imbedded documents in them and these cannot be read by the Tribunal and other documents are unclear and cannot be read by the Tribunal and a USB that has been provided cannot be opened by the Tribunal. The Tribunal provided the sponsor additional time to provide the identification documents and to identify information in the chat and telephone records she considers relevant to the review (other than demonstrating that the parties communicate with each other) and any other information she considers relevant to the review.
In a post hearing submission, the sponsor provided chat records translated into English. Some are dated April 2015 and record an exchange between a Lizz Cartegena and the visa applicant. Expressions of love are exchanged and discussion about applying for a visa. Other records are dated 2020 and record exchanges between the sponsor and the visa applicant. They are primarily one-line exchanges of love and generalities. Telephone records have also been provided.
At the time of application and decision, the Tribunal accepts the following. The parties communicate with each other and plan and undertake joint social activities. They represent themselves to other people as being married to each other. Witnesses at the Tribunal hearing and authors of third-party statements believe the parties relationship to be genuine. However, the Tribunal does not accept that the evidence given by witnesses and third-party declarants outweighs the inconsistent information the parties provided to the Tribunal. This inconsistent information led the Tribunal to have significant concerns about the parties’ credibility and this is discussed in this Decision Record.
The nature of the parties’ commitment to each other
In response to the visa refusal the sponsor stated the following. The parties are committed to their relationship and their marriage and intend to live as husband and wife when given the opportunity and they have taken the time to get to know each other in every sense.
In November 2019, the visa applicant stated the following. The parties talked about their lives and dreams and importantly about their religion. They nurtured their relationship through virtual media and meeting in person. He intends to form a stable home with the sponsor. He will learn English so that he can communicate and look for employment. Being separated from the sponsor has been difficult and parting after being together breaks his heart. The sponsor stated that when anything happens to her or her son the visa applicant advises and comforts her. The visa applicant asked her many times to go and live with him but she needs to work and care for her son. The parties will live in the sponsor’s home with her son. He will learn English and find employment. In her statutory declaration of October 2020, the sponsor stated the following. The parties support each other through telephone calls or video calls. They talk about their daily lives and the difficulties they face by being separated. She cannot go to live with the visa applicant because her son is unwell and she needs to care for him.
The Tribunal discussed with the sponsor inconsistent information she provided about different aspects of the parties’ circumstances as follows:
·In Mauricio’s statement, which the sponsor provided to the Tribunal, he declared that he introduced the sponsor to the visa applicant during a messenger call in 2015. He stated that the sponsor stayed at his home both in 2015 and when the parties married.
·Ana, (Mauricio’s wife) in her statement, which the sponsor provided to the Tribunal, declared that she met the sponsor through Mauricio in 2014 via Facebook as there was a lovely relationship between the sponsor and the visa applicant.
·The migration agent in her submission stated that the parties met through Facebook in December 2014.

The sponsor told the Tribunal that Mauricio is mistaken and she was introduced to the visa applicant at the end of 2014. In a post Tribunal hearing submission, the sponsor stated the following. When Mauricio wrote his statement, he relied on his memory of a past event and the date was not important to him.
The Tribunal put information to the sponsor under s.359AA of the Act. The sponsor was told the relevance and consequences of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The sponsor sought and was granted additional time to respond. The information is as follows:
·On the Department’s file the delegate recorded that as a result of a Departmental interview with the visa applicant, the delegate had serious concerns about the sponsor’s relationship with the visa applicant. The delegate stated that the visa applicant had limited knowledge about the sponsor. He provided vague responses on how the parties met and how the relationship developed.
·He failed to articulate how the parties began communication. He stated that the sponsor visited El Salvador approximately two years ago to meet him and that she stayed at his home for two to three months. However Departmental records indicate that the sponsor departed Australia on 10 August 2015 and returned to Australia on 2 September 2015.
The visa applicant responded by providing information about the sponsor’s visits. The sponsor responded and stated the following. The telephone call from the Department was unexpected and the visa applicant was not prepared and the reception was bad. Her trip was for three weeks and not three months. The parties’ relationship is genuine.
The Tribunal is perplexed why the visa applicant would need to be prepared to provide information about the parties’ relationship. The sponsor’s evidence is that since the beginning of their relationship the parties have communicated regularly. She provided copious records of chat and telephone messages to support their communication. The Tribunal’s view is that it should be easy for the visa applicant to give information about the parties’ relationship including the length of time the sponsor lived with him.
The Tribunal put information to the sponsor under s.359AA of the Act. The sponsor was told the relevance and consequences of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The sponsor sought and was granted additional time to respond. The information is as follows:
·The visa applicant told the Tribunal the following. The sponsor is healthy and it has been a few years since she visited a psychologist. This information was put to the sponsor as it was inconsistent with her evidence as follows: the report from the psychologist provided to the Tribunal (dated July 2020) was at the request of her migration agent.
The Tribunal is surprised that the sponsor would not have discussed her July 2020 assessment with the psychologist, especially as she claims to communicate with the visa applicant regularly.
In a post hearing submission, the sponsor stated the following. The visa applicant has supported her emotionally. When she needs to talk with him, he is always there and reassures her. She needs the visa applicant in Australia. She will know that there is someone in the house with Oscar that she can trust and who will be there when he needs someone and when the carers are not there. The parties are planning a life with Oscar and she plans to show the visa applicant Australia.
There is inconsistent information about when the parties were introduced to each other. On one hand the sponsor claimed that they were introduced to each other by Mauricio at the end of 2014. On the other hand, Mauricio declared that he introduced the parties in 2015. While the Tribunal may accept that Mauricio got this date wrong, it is just one of a number of inconsistencies in the parties’ evidence. Other inconsistent information relates to the parties first meeting. Notwithstanding the inconsistencies the Tribunal accepts that the parties met each other personally in 2015 and married in 2016 and provided each other with some emotional support. It does not accept that at the time of application and decision, the parties lived together as they have claimed or that they see their relationship as long-term either at the time of application or the time of decision.
Other considerations
In a post Tribunal hearing submission, the visa applicant stated the following. When he received the call from the Tribunal he could not think clearly because he was trying to concentrate on the interpreter who was speaking a different dialect of Spanish, saying for example I told her that the sponsor drove a ‘camioneta’ and she asked what was that so I said a minibus, little things like that make it difficult. He thought that the interpreter was from Peru and her Spanish is different from Salvadorian Spanish, ‘they use different words for things with different grammar and different slang. It was also raining and it was hard to hear everything clearly. He said that the reception was not good and he only heard part of the question and then it would cut out. He had to go outside to get good reception. He was also waiting many hours since the start of the hearing. All of this meant that he got some of his responses on times, dates and places wrong. In addition, many of the questions happened four to five years ago. He does not write letters or emails for these details to be remembered. His level of education is low and he has a hard time expressing himself. The sponsor stated the following. The visa applicant was not able to express his thoughts properly during the Tribunal hearing. He was expecting a telephone call earlier and had gone inside where the reception is less clear. It was raining and he couldn’t fully understand some of the questions and became confused and stressed. The migration agent also argues that the visa applicant’s low education impacted his understanding of questions.
The visa applicant did not raise with the Tribunal that he had a difficulty with the interpreter. It appeared to the Tribunal that he understood the interpreter and gave appropriate and logical responses to questions. While the Tribunal accepts that some questions put to the visa applicant related to years past, the Tribunal’s view is that even with the passing of years and even with little education the visa applicant would be able to provide information consistent with the sponsor’s information about their significant life experiences. While the Tribunal accepts that there was some difficulty with the telephone line, it is satisfied that questions were put to the visa applicant and were understood and he was given time to respond and did so, because he responded to the Tribunal’s questions in a manner which led the Tribunal to a view that he had understood the questions put to him. The Tribunal does not accept the argument that waiting for the Tribunal to call caused inconsistent information to be given.
A psychologist in July 2020, stated the following: she assessed the sponsor’s psychological condition on 2 July 2020 over two hours. The sponsor presents as an energetic person who has learnt to make the best of life. She enjoys good physical health. She is extremely active and takes care of her health through diet and exercises. Her history is traumatic. The civil war in El Salvador disrupted the sponsor’s childhood and education which she didn’t complete beyond the age of 10 or 11. Her village was bombed and her family moved from village to village to survive and her brother was killed. She was also subjected to family violence perpetrated by her father. In Australia she learned English and completed TAFE courses. She works as a carer and a kitchen hand. Her past relationships were abusive and included the abuse of her daughter. He goes on to provide details of the sponsor’s relationship with the visa applicant and stated that her relationship appears genuine. He details that the parties met online in late 2014. They met in person in August 2015 and after three weeks became engaged and married in July 2016. Since the wedding the sponsor has only been able to return to El Salvador once in 2019. His opinion of the genuine nature of the relationship is based on the parties’ common interests and values and being able to understand each other. Their lives were disrupted by war and lack of education and loss of relatives. They have had unsuccessful relationships in the past. They enjoy the simple things in life having grown up in the countryside. Despite their separation they appear integrated into each other’s lives. The visa applicant has built a relationship with the sponsor’s son which is comforting for her. The sponsor attributes improvement in her mental health since she began speaking with the visa applicant daily. The sponsor has a history of depression and consulted a psychologist for about six months in 1999, just after her son’s diagnosis of duchenne muscular dystrophy which coincided with the deterioration of her relationship with her de facto partner. She returned for treatment in 2012 for a few sessions. In 2014, she attended a couple of sessions mainly about her relationship with a younger man being the visa applicant. His current assessment of the sponsor is that she is suffering from major depressive disorder. She reported low mood, sadness, increased appetite, she is demotivated and experiences reduced concentration, memory and attention. Her history of trauma from a young age and the traumatic injury due to her abusive previous relationship and her history of depression make her very vulnerable. The circumstances of her son’s illness are a significant physical and emotional burden on her. She has now found a relationship with the visa applicant that is positive and healthy and in which she can thrive and the loss she would experience if he were refused a visa would likely have a very deleterious effect on her mental health. It would also make it less likely that she will be able to meet the physical and emotional demands of caring for her son. His needs are steadily increasing and will worsen significantly as his death approaches. The psychologist goes on to provide for the sponsor, a family background, educational and occupational history, relationship history and a history of the parties’ relationship. The sponsor’s speech was spontaneous, generally comprehensible and grammatical. There was no difficulty understanding the meaning of the sentences and comprehension was good.
The Tribunal considered the psychologist’s assessment and the sponsor’s evidence that it was provided at the request of the migration agent and was created as a result of the psychologist putting questions to the sponsor and on her responses. It accepts that the sponsor suffers from the condition as detailed in the assessment. It considered the evidence given by the psychologist that she considers the parties’ relationship to be genuine to have been made on information provided by the sponsor. There is no evidence that the opinion has been given after the psychologist considered evidence of the financial aspects of the parties’ relationship or the nature of their household or the social aspects of their relationship or the nature of the parties’ commitment to each other, other than that told to her by the sponsor.
A letter from a neurologist which is dated July 2020 provides the following information. The sponsor’s son is under ongoing neurological review with a diagnosis of Duchenne’s muscular dystrophy. It substantially affects his day to day activities because of weakness in all limbs. He requires a motorised wheelchair for mobility, hoist transfers and support structures in the home environment to care with activities of daily living. The muscular weakness can also affect his respiratory and heart muscles and he continues under both respiratory and cardiac service review to oversee changes. Two other historical medical letters detail the sponsor’s son’s condition and the care he requires. The migration agent puts forward compelling and compassionate circumstances relating to Oscar. The Tribunal accepts that Oscar suffers from the condition as described and is sympathetic to his serious condition. However, the question before the Tribunal is whether the sponsor and the visa applicant are genuine spousal partners and there is no evidence before the Tribunal that the visa applicant meets any of the exceptions to that requirement.
The migration agent claims there are unique and exceptional circumstances in this matter warranting Ministerial intervention. She seeks a letter of support to recommend the matter to the Minister. The Tribunal declines this request. However, the sponsor may bring this matter to the Minister’s attention of her own volition.
Conclusion
This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and completely. The Tribunal agrees with the migration agent’s statement that inconsistencies don’t always lead to a relationship not being genuine. However, when consistent evidence is given it provides the Tribunal with insight into the different aspects of a relationship. In this case, the parties provided significant inconsistent information about when they met, about where and with whom they lived when together and about their financial matters and about their household. The Tribunal considered all the evidence individually and completely including the Department and Tribunal files and the evidence pre-and post-hearing and at the Tribunal hearing. At the time of application and decision, given the inconsistent evidence and credibility concerns, the Tribunal is not prepared to accept the parties’ evidence about their commitment to the relationship. The parties have not satisfied the Tribunal that at the time of visa application and this decision the parties had or have a mutual commitment to a shared life to the exclusion of all others or that they have a genuine and continuing relationship; or that they live together and not separately and apart on a permanent basis. This has led to the Tribunal not being satisfied by the parties’ evidence that they have a mutual commitment to a shared life as a married couple to the exclusion of others or that their relationship is genuine and continuing either at the time of application or the time of decision.
On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.
There is no evidence that the visa applicant meets any of the alternative criteria for the grant of the visa.
Therefore, the visa applicant does not meet cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.
For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
Helena Claringbold
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).

[2020] AATA 6060

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