Dangers of Do-It-Yourself (DIY) Partner Visas Applications

Australian immigration

The Australian Department of Immigration charges exorbitant Visa fees of AUD 6,865 to sponsor a fiancé or spouse from overseas. Most sponsors do not have the extra funds to engage the services of a competent Migration Agent to prepare and submit the application. Consequently on a DIY application gets refused based on any number of unaccountable discretionary decision exercised by the Case Officer who may not have much experience in love and courtship. The sponsor is than compelled to spend thousands more to engage a competent gent to appeal the Administrative Appeals Tribunal and wait for a year to get a hearing. For the benefit of visitors to our blog we have reproduced and unedited version of one of the submission we prepared for the appeal. The outcome was successful without the need for hearing.

 

15 November 2015
Ms JXXXX XXXXX
The Registrar
Administrative Appeals Tribunal
Migration & Refugee Division
Level 10, 120 Spencer Street,
Melbourne VIC 3000
MRT File Ref: XXXX971

 

Dear Ms. XXXXXXd

Re: Submission – MRT File Ref:  W0600520
Date of MRT Hearing: 30 November 2015 – 9.30 AM (WA Time)
Review applicant (sponsor): Mr. XXXXXXXXXXXXXXX
Visa applicant: XXXXX
Visa class: Class UF
Subclass 309 Spouse (Provisional)
Date of application: 22 December 2014
Date of Visa Refusal: 22 June 2015
DIMIA File No. BCC2014/3518391
Application ID: 1345575934
Transaction Reference Number: EGO7G8LQ04
Visa Application Centre Lodgement Number: AUE-NG-60-011324-S

1.0    This submission to the Migration Review Tribunal refers to the refusal of an application for visa class UF, Subclass 309 Spouse (Provisional). An online valid application was made on the 22nd Dec 2014. The applicants were not assisted by any Migration Agents. The application was refused on the 22nd June 2015. The delegate determined that the application did not satisfy the provisions of section 5F (2) of the Migration Act and the corresponding provisions in the regulations, cited as Reg.1.15A Spouse and the PAM policy guidelines. These legislations define the nature and characteristics of spousal relationship for the assessment and the grant of subclass 309 visa.

2.0    In making this submission we have considered the following materials as source documents:

(i)    The relevant sections in the Migration Act 1958 (section 5(F)(2)(3))
(ii)   The Migration Regulations 1994
(iii)   The relevant policy guidelines in the Procedure Advice Manual (PAM)
(iv)   The Case File from the DIBP
(v)    The MRT Reference file
(vi)   Relevant Federal and High Court cases
(vii)   Relevant Past MRT cases
(viii)   Additional documents marked as Folios in support of this submission.

3.0 This submission also makes references to the contents in the following documents submitted with the application which were released to us electronically by the MRT.

1.    The Marriage certificate
2.    Form 888 from XXXXXXX – signed and witnessed by pastor
3.    Note: Name of applicant is the sponsor’s name and vice versa Form 888 from XXXXX XXXX –sponsor cannot find the signed page he submitted
4.    XXXXX love story – not signed
5.    XXXXve story – not signed
6.    Aspect of relationship
7.    Financial aspect – signed
8.    Nature of commitment – signed
9.    Nature of household – signed
10.  Photos of marriage –

4.0    Section 5F (1) (2) and (3) in the Act defines the nature of the Spouse relationship as:

“Section 5F Spouse

     [5F] (1)      For the purposes of this Act, a person is the spouse of another person if,
                      under subsection (2), the 2 persons are in a married relationship.
     [5F] (2)      For the purposes of subsection (1), persons are in a married relationship if:
                   a. they are married to each other under a marriage that is valid for the purposes of
                       this Act; and
                   b. they have a mutual commitment to a shared life as husband and wife to the
                       exclusion of all others; and
                   c.  the relationship between them is genuine and continuing; and
                   d.  they:
                        (i)  live together; or
                        (ii)  do not live separately and apart on a permanent basis.
    [5F] (3)      The Regulations may make provision in relation to the determination of whether one or
                     more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may
                     make different provision in relation to the determination for different purposes whether
                     one or more of those conditions exist.
                      Note:  Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
 “In accordance with the  section [5F](3), of the Act  the Migration Regulations makes the following provisions :
                   “ Reg 1.15A  Spouse
  1. For subsection 5F(3) of the Act, this regulation sets out arrangements  for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a),(b),(c) and (d) of the Act
      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 sub regulation (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
                                            person draw from each other; and  (iv)  whether the persons see the
                                            relationship as a long-term one.
    [1.15A] (4)      If the Minister is considering an application for a visa of a class other than a class
                         mentioned in sub regulation (2), the Minister may consider any of the circumstances
                         mentioned in sub regulation (3).

5.0     The Reg.1.15A(3) Spouse, codifies sec. [5F](3), into four factors and these four are  explained  the PAM policy guideline. These factors are not prescribed in law but sets direction for assessment for all visa classes, including that are not in the partner category of visas.The delegate is directed to consider the four factors collectively for all visa classes, including those that are not in the partner category visas for consistency and fairness.  The four factors are :

•    financial aspects of the relationship
•    nature of the household
•    social aspects of the relationship and
•    nature of the persons’ commitment to each other.

The policy guideline continues to advise :  “ By doing this, officers will be able to satisfy the s5F(2) requirement that the:

•    relationship is genuine and/or continuing
•    parties have a mutual commitment to a shared life to the exclusion of all others and
•    partners are living together (or at least not living apart permanently).

The officer’s assessment must not be based by only comparing how many factors listed in regulation 1.15A(3) are satisfied against how many are not satisfied. Rather, it involves officers:

•    considering each individual relationship against all factors listed in regulation 1.15A(3) and

•    taking into account any other relevant information provided by the applicant (or  information otherwise available to officers), assessing whether or not, on balance, the requirements of s5F(2) are met and that a spouse relationship exists.

Decision makers must decide the weight to be given to each factor or characteristic. However, they are not, limited to the four factors at regulation 1.15A(3), but can consider any additional information that is reasonable and practicable on which a decision can be based.”

The four factors are simply those that policy considers to be key elements in establishing whether a relationship meets requirements to be a spouse relationship and so have been codified in regulation 1.15A.

6.0     We have considered the delegates findings against the above framework of the legislation and the policy guidelines. We find the delegate has applied the full force of section 5F(2),  Reg.115(A)(3) and the PAM policy guidelines.. The delegate was looking for demonstrable evidence to support :

(i)       genuine and ongoing relationship
(ii)      shared financial arrangements,
(iii)     co-habitation and household circumstances,
(iv)     social interaction as a couple with others
(v)      the couple living together for the majority of the relationship

6.1     From the decision record the delegate determines that she is “…not satisfied the applicant meets Section 5F (2) of the Migration Regulations. I expect the parties to have commenced living together after the claimed marriage on 25/01/2014 and have noted that the sponsor arrived back in Australia less than a week after they got married on 01/02/2014. I find that period of cohabitation is extremely short less than a week after the claimed marriage and does not reflect the expectation of a couple in a married relationship.”

6.2    Further, the delegate determines that the “the sponsor has spent more time living inside Australia than outside Australia. I find that the applicant and the sponsor are not living together and have not lived together on a permanent basis. I find that the applicant and the sponsor have spent more time apart than together.

6.3    The delegate support her adverse finding of refusal on the grounds “the statements provided by the parties are to be unconvincing, vague and to have little substance. The account the sponsor and the applicant have provided of the events leading up to their engagement is fanciful narrative and provides implausible accounts of how the relationship started and developed.”

6.4    The delegate determines that no evidence has been provided for the claim of communication with text messages and emails leading to the inference that there would have been “no contact” between sponsor and visa applicant.

6.5    The delegate finds no evidence of financial support provided by the sponsor.

6.6    The delegate goes on to discount the two statutory declarations provided by the two Australian residents, XXXXX and XXX,  on the grounds that they have not seen the couple together (in Australia) and therefore the delegate is unable to determine the “the nature, strength and extend of this relationship.”

6.7     The delegate is concerned that “no close family members of the parties have attested to recognizing the relationship  and therefore the delegate infers the there is no “family acceptance of this claimed relationship”

6.8    Finally the delegate determines that “ a marriage may have taken place that itself does not demonstrate genuine commitment or meet the requirements of a married relationship as intended by the regulation”  and goes on to conclude that the delegate is not satisfied “that the applicant and the sponsor are in a married relationship as required by the regulations in Section 5F(2)” and that “the applicant and the sponsor are not living and have not lived together on a permanent basis.” and “that the applicant and the sponsor have spent more time apart than together.”

6.9    In summary the delegate applying the full force of section 5F(2) with the cross referenced regulations and PAM  determines that the application does not meet section 5F (2)of the Act. The delegates’ finding can be summarized as being:

(a)   that the  marriage is one that is “claimed” by the applicant and not one that is  found to be a demonstrable fact
(b)    the couples association prior to the marriage  is discounted
(c)    the couple have not commenced to live together after the marriage
(d)    their cohabitation period is too short after marriage
(e)   the sponsor spent more time living in Australia than outside
(f)    have not lived together on a permanent basis and have spent more time apart.
(g)   discounts the claims of the sponsor and visa applicant as vague and fanciful
(h)   the sponsor and the visa applicant had no contact with each other
(i)    there is no financial support by the sponsor to the visa applicant as the spouse
(j)    the statutory declarations (Form 888)by the two Australian residents are discounted on the
        grounds they have not seen the couple together (in Australia)
(k)    do not have genuine commitment to each other or show married relationship

7.0    With the above understanding of the legislation and the policy guidelines the facts and circumstances presented by the couple, as best as it can be expressed by them, XXXX aged 22 and his spouse XXXXX aged 23, show that the couple are legally married with a strong commitment to each other to the exclusion of all others, with the intention of setting up of common household to lead marital life.

8.0    The attached time line of their relationship, marked as Folios ?? to ??, shows the couple met as far back as February 2010 and from thence a bonded friendship  between them. This friendship develops into a potentially customary arranged marriage with the approvals of the elders of both the family. In October 2010 XXXX follows his step mother and half siblings to Australia as a permanent resident. He promises his girlfriend, XXXXX, that he will return to marry her. Like all young couples intensely in love with each other are painfully forced to live apart temporarily. On arrival in Australia in October 2010 he becomes a student at TAFE and completes his studies in April Nov 2014. During his studies he works as a casual the part time factory worker. During this period XXXXand XXXXXX continue their commitment and love through the electronic means.

9.0    The elders of the couple, on realising the love and commitment to each other, agree to a customary marriage and fix the marriage date on the 25th of Jan 2014. XXXXX takes leave from his studies and part time work and departs for Nigeria where he gets reunited with XXX. As arranged by the elders the couple undergo a civil wedding and a church wedding with a wedding reception on the nominated day. The wedding was arranged and eventuated with a fusion of practices of Nigerian customary ceremonies with the Christian marriage wows in a church. The wedding was blessed and witnessed by immediate family members, relatives and friends. One important witness was XXXX.Following the marriage, after a short period of one week of honeymoon of cohabitation, XXXX had to return to Australia to his studies and part time employment with the intention to sponsor his newly married spouse under subclass 309, as an offshore visa application.

10.0    XXXX works hard in Australia  and intermittently sends small amounts of  money to his spouse. On 17 April 2014 Abraham departs for Nigeria on short notice to provide emotional support to his traumatised wife following a break in robbery where the robbers steal XXXX precious wedding ring, lap top and other memorable items of value from the wedding. Abraham arranges for his wife to shift to a safer part of the town. He returns to Australia on the 4th of May 2015  to continue his studies and  his part-time work. He works hard to save sufficient funds to lodge the subclass 309 visa on his own. He did not have adequate funds to engage the services of a migration agent. He lodges the visa application on the 22nd Dec 2014. With the application he submits a certified copy of the marriage certificate, statements from witnesses and photographs, and the Statutory Declaration Form 888. Statements from the couple describing their commitment to each other were also submitted These supporting evidence demonstrates that the couple did undergo a genuine lawful marriage ceremony witness by family members, relatives and friends. There were no fraudulent documents submitted.

11.0    With the above background of the couple’s relationship leading to marriage with the firm commitment to a shared life to the exclusion of all others, the delegate apparently makes a flawed assessment of the subclass 309 visa application under the parameters of Sect 5F (2) of the Act, Reg 1.15A and the relevant PAM policy guidelines. The gist of the delegates adverse findings are listed in 6.1 to 6.8 above.

12.0    We submit that from the outset the delegate shows inherent bias against found facts. Though the lawful marriage was evidenced the delegate refers to the marriage as the “claimed marriage” more than once in the decision record. Elsewhere in the decision record the delegate goes on to observe that “While I recognize a marriage may have taken place ….”  implying the delegate does not accord the full recognition of the marriage certificate as the existence of a critical fact for the consideration 5F(2)(a), prescribed as  ”  they are married to each other under a marriage that is valid for the purposes of this Act;  There  is no evidence to suggest that that the delegate has undertaken any investigation to clear her doubt on the veracity of this crucial fact, such as interviewing either party on all aspects of the marriage to clear her unexplainable doubt. In the FCA in the case of The Minister of State for Immigration, Local Government and Ethnic Affairs and Gamdur Singh Dhillon and Marcelle Suzanne Maree Lievense Dhillon No.WAG 26 of 1989 FED No.200 Administrative Law –Presiding Judges Northrop, Wilcox and French observed that the visa applicant “ subjected to a statutory decision is entitled to have the case determined by reference to found facts, not suspicion or conflict of evidence.” (emphasis added) . The delegate gives no reasons as to why she doubts the veracity of the marriage certificate as a legal document.

13.0      The adverse decision is also flawed in that the delegate inappropriately looks for evidence of cohabitation without taking into consideration the nature and the legal constraints imposed on the Partner (Provisional) (Class UF) (subclass 309) visa as listed in 6.1 and 6.2 above. The subclass 309 is a kind of a visa that does not require cohabitation until the visa applicant has entered Australia on a 2-year provisional visa and commences cohabitation as spouses. It is an error to look for characteristics of the normal spousal relationship in a common marital home while living apart temporarily until visa grant. The adverse decision is the outcome of the narrow and stringent application of the full force of the regulation 1.15A and the PAM policy guidelines for assessing subclass 309 visa application without taking into consideration the legal constraints imposed by the couple having to live apart temporarily while waiting  for the visa approval. The requirement of cohabitation should not be considered in this instance. Likewise evidence of marital home and common characteristics of social activities in a spousal relationship should not be looked for in the assessment of subclass 309 visa applications. For the assessment of these characteristics  can only be undertaken in its entirety of section 5F(2) and the associated Reg 1.15A with the Pam policy guidelines  after the visa is granted and the visa applicant joins the sponsor, as the spouse,  in Australia. Only than it would enable the couple to set up a common household and commence to live permanently as husband and wife. Until such time the application of section 5F(2) should be tempered with discretion to consider factors accordingly  to satisfy section 5F(2). The regulation 1.15A (3)  and the policy guideline provides for the consideration of the application  with some flexibility, beyond the constraints of the policy guidelines,  when it says:

“Decision makers must decide the weight to be given to each factor or characteristic. However, they are not, limited to the four factors at regulation 1.15A(3), but can consider any additional  information that is reasonable and practicable on which a decision can be based.”

The four factors are simply those that policy considers to be key elements in establishing  whether a relationship meets regulations.

In 6.3 above, the delegate looks for precision of expression of love and commitment from the couple as in a western society, without regard to the socio-cultural background of the visa applicant and the sponsor. Having shown reticence to accept validity of the marriage ceremony and the marriage certificate and  doubted the existence the wow taken by the couple in a church wedding in the presence of elders and other witnesses, the delegate looks for expression of romance and commitment as in a western urban like situation. In many cultures and rural setting open expression of romance and the relationship between the opposite genders are not encouraged and even prohibited, and for some from such background having to articulate these feeling to a codified regulatory requirement in a language that is not native is indeed a difficult task. In other cultures where arranged marriages are customary practice, the romance and commitment to each other begins only from the very day of their marriage. To overcome any doubts it is not uncommon for delegates to interview visa applicants for subclass 300 and 309 to probe the genuiness of the relationship to weed out “marriage scams”. This did not take place in this case. The attempt to measure the depth and intensity and genuiness of commitment in a legally married couple may well fall far beyond the intentions of legislation. At the worst scenario, where couples have not expressed commitment to each other in words, in the cited Dhillon case above  it was further observed that  “ It is perfectly possible for parties, or one of them, to enter into a marriage without a genuine intention of living together as man and wife indefinitely and yet, a few months later, for each of them to have that intention.  Although the factors noted by Mr Jolly were such as reasonably to excite some suspicion about the nature of the relationship, they could not determine the critical question” This observation reaffirms the weightage and importance that should be given to the marriage wow taken at the church wedding and the significance of the marriage certificate as prescribed in section 5F(2)(a), in the absence of any adverse findings. In the same case Their Honours rule “ ..The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.”  and proceeded to observe in para 10 “  It cannot be too strongly emphasised that a primary responsibility of a statutory decision maker is to reach firm conclusions about those facts which are relevant to his or her decision.  If the decision maker is subsequently called upon to state his or her findings, he or she should do so in clear and unambiguous terms; not being reticent in expressing findings adverse to particular people, if in fact they were the actual findings reached at the time of the decision.  Contrary to the submission put by counsel for the Minister, it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts.” . The implication of this ruling for the delegates findings of “not satisfied” without explicit adverse grounds shows a serious defect in the making of a statutory decision, as expressed by the delegate in sub para 6.3 above. We submit the delegate, with her inherent bias, omitted to give proper consideration to the details contained in the various statements and the statutory declarations.

14.0    The delegate’s adverse finding was partly influenced by the discounting of the statutory declarations in form 888 made my XXXXe and XXXXXXon the grounds they have not seen XXXX and XXX together. We contend that it is unreasonable to expect anyone living in Australia to testify to having seen the couple together when the couples are living temporarily apart in two different countries. One of them, Ifeoluwa, in fact declares that he has known of the relationship between the couple for over 3 years and that during a recent visit to Nigeria he had met XXXX and conveyed personal message from XXXX The omission to give any consideration to this statutory declaration gives rise to the flaw in the adverse findings.

15.0    On balance of probability between the evidence that were provided at the time of the application and those that were omitted, such as statements from immediate family members,  the delegate considered only the omissions to arrive at her adverse finding,without giving any consideration to those evidence that support the existence of the spousal relationship while living apart temporarily. To assist the Tribunal to make a decision in favour of the applicant we have revamped the application with the following additional documents:

i)    Time line of relationship – Folios
ii)    Statement of XXXX –(sponsor) – Folios …
iii)   Statement of XXXX (Visa applicant)- Folios …
iv)   Statement of XXXXX’s father) – Folios …
v)    Statement of XXXX’s mother- Folios …
vi)   Statement of XXXXX – Friend of XXX – Folios …
vii)   Stat Declaration form 888 of XXXXX – Friend of couple- Folios …
viii)  Stat Declaration Form 888 of XXXX –(step mother of
XXXX) – Folios …

ix)    Historical evidence of  money remittance from XXXX to XX commencing 01/01/2013 to 01/11/2015 – Folios …

x)    (any additional attachments to reaffirm spousal relationship while living apart such as electronic communication, sending of gifts, etc)

These additional documents reaffirm the spousal relationship of the couple and that it is genuine and continuing in spite of living apart temporarily, as testified by parents and friends of the couple.  It is our belief that the Tribunal may consider the statements of parents, family members, relatives friends and other interested parties in the form of statutory declarations are preferred as under policy, they carry more weight.

16.0    In satisfying the policy guidelines for subclass 309 Spouse (Provisional) as stipulated in Schedule 2, and the outline in Pam3:Sch2Visa309, cross referenced to Regulation 1.15A in Pam3:Div1.2/reg1.15A, the essential ingredients for “spousal” relationship requires :

(a)     the  relationship to be a de jure marital relationship recognized under migration law
(b)     the relationship to be an exclusive one to which both parties have a mutual commitment
(c)     the (marital) relationship to be genuine and continuing (on-going)
(d)     the parties not to be living separately and apart on a permanent basis

 

Notwithstanding the couple meeting the above requirements, while living apart temporarily the Reg.1.15A (3)(a)(b) and (c) should not be considered or given any weight However, the  fulfillment of Reg 1.15A (3) (d) is self-evident from the attached statements from  different parties. The policy guidelines should not trump over legislation.  The principle that policycannot “go beyond” what is specified in the Act or the Regulations was confirmed in the decision of the Federal Court in the case of Chow v Minister for Immigration & Multicultural &Indigenous Affairs [2002] FCA 1459 (11 December 2002).

17.0 In this submission we have shown that the sponsor is legally married to the Visa applicant.       The supporting documents show :

•     the marriage is genuine, ongoing, with firm commitment to each other to the exclusion of all others. These evidences taken cumulatively and in relation to each other show there is nothing adverse about the spousal relationship.

•     The genuine spousal relationship has endured to this day since the marriage date in spite of the trials and tribulations of visa refusal and the separation.

•     The sponsor is a well settled permanent resident of Australia

•    The sponsor has demonstrated care, concern, love and commitment to his wife as best as he can within his means and with the limitations of the parties separated in two countries. The sponsor returns to his spouse home in Nigeria to provide emotional support in crisis and trauma faced by his wife. When the sponsor returns to Nigeria he lives with his wife. He regularly sends money to the visa applicant. In various statements they express love for each other with the desperate hope that they would be united and able to live in Australia as a single family unit.  Their intention to maintain their marital life is beyond any doubt.

•    If the subclass 309 visa is refused the wife would be permanently separated and forced to live apart in Nigeria with the occasional visit of the sponsor. They would be deprived of the physical love and affection of the sponsor, unable to start a family life with children as normal families do..

•    The family would be denied the opportunity to be united and live under the same home as a single family unit.

Given the above facts and circumstance, considered wholly and cumulatively, demonstrates that the application meets the section 5F(2) of the ACT, and the corresponding regulations 1.15A with the accompanying pam policy guidelines. We kindly seek the Tribunal to set aside the visa refusal decision and to remit the visa application for further processing.

 

Yours sincerely

Robert K Chelliah

MARN 92-54011