[2003] MRTA 8207

CATCHWORDS: Review of visa refusal - Subclass 309 - genuine relationship

VISA APPLICANTS: Dora Adwoa Asiamah (primary applicant)

Frempong Alexander, Konadu Vida, Appiah Forson, Premoh Emmanuel (secondary applicants)

DECISION: The Tribunal remits the applications made by the visa applicants for a Partner (Provisional) (Class UF) visa to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the primary visa applicant meets the following criteria for a subclass 309 (Spouse (Provisional)) visa:

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate) to refuse to grant Partner (Provisional) (Class UF) visas. Ms Dora Adwoa Asiamah (the visa applicant), a national of Ghana, born on 22 July 1961, applied for a Partner (Provisional) (Class UF) visa on 9 April 2001. Her four children were included on her application. The delegate's decision to refuse to grant the visas was made on 13 March 2002.

2. Mr Emmanuel Kwame Sankwa Osei (the review applicant), the Spouse of the visa applicant, lodged a valid application for review with the Tribunal on 21 May 2002. As discussed below the review applicant verbally advised the Tribunal that the review is in respect of the visa applicant and her children. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria and policy immediately relevant to this review are:

Regulation 1.15A of the Regulations.

Regulation 1.20J of the Regulations.

Part 309 of Schedule 2 to the Regulations.

Procedures Advice Manual 3: regulation 1.15A - Interpretation - Spouse

Procedures Advice Manual 3: Division 1.4B - Sponsorship and Nomination: Spouse, Prospective Spouse and Interdependency visas.

Bretag v Minister for Immigration, Local Government and Ethnic Affairs (Unreported, Federal Court, O'Loughlin J, 29 November 1991)

6. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

7. The Tribunal has before it the Departmental case file OSF2001/113239 and the Tribunal's case file N02/03698. The evidence on file can be summarised as follows.

8. The visa applicant was sponsored in connection with the visa application by Mr Emmanuel Kwame Sankwa Osei (the review applicant), an Australian citizen, who was born in Ghana on 12 December 1959.

9. The visa applicant was previously married from 1982 to 1987 and has 4 children from that marriage. The marriage is claimed to have dissolved in the presence of elders of both parties.

10. The review applicant was also previously married and divorced on 4 March 1993. He has no children from this marriage.

11. The couple claims that the review applicant is a long time friend of her cousin and her cousin introduced the review applicant to her and made arrangements for the visa applicant and the review applicant to meet with the view to marriage. The couple first met at the airport in Accra, Ghana around in October 2000 when the review applicant visited Ghana for the purpose of meeting the visa applicant. They spent most of the time together and got to know each other and 2 weeks later the review applicant proposed and the visa applicant accepted. They married on 14 November 2000 about 4 weeks after their first meeting. They lived together for 2 weeks after their marriage and then the review applicant left for Australia.

12. The visa applicant lodged the application that is the basis of this review on 9 April 2001.

13. The application was refused on 13 March 2002, as the delegate was not satisfied that the relationship was genuine and continuing. This finding was based on lack of documentation produced in support of the claims. The delegate also refused the applications made by the secondary applicants being the visa applicant's children.

14. An application for review was lodged on 21 May 2002, with the review applicant claiming that he would provide supporting reasons later. Later the review applicant provided supporting evidence and a statutory declaration in support of his application. The application for review did not include the visa applicant's children. However at the hearing the review applicant confirmed that this was an oversight and he is seeking a review of the decision to refuse the visa applicant's children as well.

15. The review applicant was sent a letter on 12 August 2003 inviting the review applicant to provide comments on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. On 8 September 2003 the review applicant provided additional information, which consisted of comments concerning the validity of the visa applicant's divorce in 1987 and an article titled "The Validity of Foreign Marriages in Australian Law: the case of Ghanaian Customary Law Marriages" by Professor Sam Blay. On 17 October 2003 the review applicant provided the Tribunal with a submission addressing the relationship of the review applicant with the visa applicant.

16. The Tribunal held a hearing on 23 October 2003. The review applicant and the visa applicant gave oral evidence. The review applicant was represented by Kwame Foramoah of Denning Immigration Associates.

17. The review applicant said that he only recently appointed a representative and he had originally organised the request for review to this Tribunal without assistance. This is why he forgot to include the visa applicant's children on the application for review. However the visa applicant's children are part of his application for review.

18. The visa applicant and the review applicant confirmed that there was no contact between them before the review applicant's arrival to Ghana in October 2000. They also confirmed that the review applicant is a long time friend of the visa applicant's cousin and her cousin introduced the review applicant to her and made arrangements for the visa applicant and the review applicant to meet with a view to marriage. The couple first met at the airport in Accra, Ghana around in October 2000 when the review applicant visited Ghana for the purpose of meeting the visa applicant. They went to the review applicant's sister's place for 2 days and then the visa applicant went back to her house which is a four to five hours drive away. A week later the review applicant went to visit the visa applicant and he stayed with her for a week during which time they decided to marry. He also met her children at this time. The oldest boy is a mechanic, the daughter is a seamstress and the twins are still studying. The review applicant then returned to his sister's place and travelled back and forth until the wedding on 14 November 2000 about 4 weeks after their first meeting. They lived together for 2 weeks after their marriage and then the review applicant left for Australia in December 2000 as he had work commitments in his capacity as a self employed courier.

19. The review applicant said that he sends the visa applicant $100 per fortnight either through Western Union or through a Ghanian associate who travels regularly between Australia and Ghana. He also bought the visa applicant a taxi in Korea in February 2001 and had it shipped to Ghana so that the visa applicant has a regular source of income. This reduces the burden on the review applicant to support the visa applicant. Someone else drives the taxi and then gives the visa applicant some of the money earned. However the taxi has not been working in recent months. The taxi cost $4000 and he bought it at a car yard in Korea but he did not think to provide the Tribunal with the receipt. Some friends in Ghana arranged for the taxi to be shipped to Ghana where Korean vehicles are common. The review applicant did not tell the visa applicant that he was sending her a taxi; it was a surprise.

20. The visa applicant confirmed that the review applicant sends her the equivalent of about $400 per month and that he brought her a taxi to supplement her income.

21. The review applicant confirmed that he was working as a self employed courier at the time he married and now works as a storeman for a computer company. He has no family in Australia and has a mother and sisters in Ghana. He rents a 2 bedroom unit in Wentworthville but plans to move to a house when the visa applicant and her 4 children come to Australia. The visa applicant works as a seamstress making African dresses and also braids hair. Her daughter also sews. The review applicant anticipates that the visa applicant will be able to find employment in this field in Australia.

22. The visa applicant told the Tribunal that she and her daughter plan to start their own business in Australia sewing African dresses.

23. The review applicant said that he rings the visa applicant about once a week and they speak for 30 minutes minimum about their lives, her children, Ghana and its politics. He buys a $20 phone card about once a fortnight and this gives him 80 minutes to Ghana. The review applicant showed the Tribunal 14 old phone cards and 2 current phone cards. He speaks to the visa applicant's children when he rings the visa applicant. The visa applicant occasionally rings him but usually he rings her. The visa applicant cannot write so all their communication is by phone. The amount of phone contact that they have has increased as they need to share their frustrations and reassure each other about the time it is taking to process the visa applicant's application.

24. The review applicant said that the visa applicant has a large extended family in Ghana but the most important part of her family is her children. He knows that the visa applicant has spoken to her children about coming to Australia and that they will settle as long as they are with their mother. The visa applicant told the Tribunal that her mother and two of her uncles live close to her. She has met some of the review applicant's family. Apart from his sister she has also met his uncle and his mother. She last visited the review applicant's mother about 6 weeks ago. The visa applicant also said that the most important thing for her children is that they remain with her and so they are happy to come to Australia with her.

25. The review applicant and the visa applicant were previously married and each confirmed that they have divorced. The review applicant divorced in 1993. The Australian Family Court document granting the divorce is provided as evidence. The visa applicant's marriage was dissolved in 1987 in the presence of elders of both parties. The respective uncles of the visa applicant and her former spouse provided a statutory declaration attesting to the divorce. The visa applicant said that she had been very hurt by her former marriage. She has no contact with her former husband and not even their children know his whereabouts. She felt confident however about marrying the review applicant so soon after their meeting because her cousin who introduced them knows about the problems that she had with her former marriage and would not introduce her to anyone unsuitable. The visa applicant also said that she is not nervous about coming to Australia; she just wants to join her husband.

26. The review applicant told the Tribunal that he wanted a new relationship for companionship and perhaps to have children. When he met the visa applicant they were immediately attracted to each other. The visa applicant was younger when they met. She is 41 now and if it is not possible for them to have children the review applicant said that he will still be able to help her raise her children as it is better for the children to have 2 parents anyway. The review applicant commented that he had not realised that processing the spouse application would take so long. He also said that the visa applicant did not tell him much about her former marriage as she is a shy person. They both said that they believe that the visa applicant will be able to settle in Australia. The review applicant said that he has settled well despite not having family here.

27. At the time the visa application was lodged Partner (Provisional) (Class UF) contained the following subclasses: subclass 309 (Spouse or Partner) and subclass 310 (Interdependency (Provisional)). The only subclass in respect of which any claims have been advanced is subclass 309. There is no evidence to suggest that the visa applicant meets the key criteria for a subclass 310 visa.

28. The criteria for a subclass 309 visa, relevant to this review, are set out in subclauses 309.211 and 309.221. The criteria can be posed as the following questions:

* Was the sponsor an Australian citizen, an Australian permanent resident or eligible New Zealand citizen at the time of the visa application?

* Was the visa applicant the spouse of the sponsor at the time of the visa application?

* Does the visa applicant continue to be the spouse of the sponsor at the time of decision?

* If the application is lodged on the basis of a de facto relationship between the visa applicant and sponsor, was the relationship in existence the 12 months immediately preceding the application?

29. At the time of application the visa applicant was validly sponsored by the review applicant Emmanuel Kwame Sankwa Osei who is an Australian citizen.

30. Based on the information before the Tribunal, neither the primary visa applicant nor the review applicant has previously been involved in a sponsorship or nomination.

31. The review applicant divorced in 1993. The Australian Family Court document granting the divorce is provided as evidence. The primary visa applicant's marriage was dissolved in 1987 in the presence of elders of both parties. The respective uncles of the primary visa applicant and her former spouse provided a statutory declaration attesting to the divorce. The primary visa applicant and the review applicant were married to each other in Ghana on 14 November 2000. After considering advice provided by the review applicant's representative and the Tribunal's legal officer about customary divorce in Ghana the Tribunal finds that at the time of application the primary visa applicant and the sponsor were married to each other under a marriage that is recognised as valid for the purposes of the Act. At the time of decision they are still married to each other. The Tribunal therefore must now consider whether the primary visa applicant was the `spouse' of the sponsor at the time of application and continues to be the `spouse' of the sponsor at the time of decision.

32. Regulation 1.15A contains the test to be applied to determine whether one person is the `spouse' of another person, whether in a married or a de facto relationship. In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court considered this provision of the Regulations. The Court held that subregulation 1.15A(3) set out mandatory considerations. Accordingly, the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in subregulation 1.15A(3). These considerations relate to all of the circumstances of the relationship including, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and nature of the persons' commitment to each other.

33. Having regard to the considerations for a spousal relationship set out in regulation 1.15A, at the time of the application and at the time of the decision, the Tribunal has made findings under the following headings:

34. The Tribunal is satisfied that the review applicant regularly contributes to the financial support of the primary visa applicant and her 4 children. He claims that about two and a half months after their marriage he went to Korea and bought a car and shipped it to the visa applicant to be used as a taxicab to earn money. He provided the Tribunal with 6 international money transfer receipts showing various amounts sent to the visa applicant on various dates from February to September 2002. The review applicant also provided a statement dated 29 October 2002 from the Managing Director of a food industries company in Accra, Ghana stating that the review applicant often sent money through him to the visa applicant in Ghana. The statement lists various dates, covering the period from June 2000 to March 2002, on which money were sent to the visa applicant.

35. The visa applicants live in Ghana and the review applicant lives in Australia and so they have not had the opportunity to set up a combined household. They have only spent about 6 weeks together which was at the time they met and married. The review applicant said that he regularly rings the primary visa applicant but uses phone cards to do so; therefore this cannot be verified but the review applicant showed the Tribunal a number of old phone cards and explained cogently how often he has to buy a new card and how long the cards last. The Tribunal notes that the primary visa applicant cannot write so contact would be limited to phone contact. However the Tribunal was satisfied that the review applicant and the primary visa applicant have regular communication.

36. The review applicant provided the following evidence.

* The couple's wedding photographs with a number of their guests.

* 2 statutory declarations from the review applicant's friends in Australia confirming the genuine and continuing nature of the couple.

* Statutory declarations from the review applicant's uncle, aunt and the visa applicant's 3 uncles, a cousin and the head of the family confirming the couple's relationship and supporting the visa applicant's application.

The couple have not spent much time together but the Tribunal is satisfied that the relationship and marriage is accepted and acknowledged by family members on both sides.

The nature of the persons' commitment to each other:

37. The visa applicant and the review applicant confirmed that there was no contact between them before the review applicant's arrival in Ghana in October 2000. As noted they have only spent about 6 weeks together. However they both said that following the break down of their previous marriages they wanted to remarry for companionship and they were prepared to accept the recommendation of their mutual acquaintance, the visa applicant's cousin. Their evidence is that they have regular phone contact and discuss a variety of personal and social issues.

Whether there is a mutual commitment to a shared life as husband and wife to the exclusion of all others. Whether the persons live together or do not live separately and apart on a permanent basis.

38. Taking all the evidence before it into account the Tribunal is satisfied that the applicants do have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied that the commitment existed at the time of application, even though little evidence was provide at the time of application.

39. The Tribunal notes that the couple have not had an opportunity to establish their life together and therefore the nature of the commitment is evidenced less by such normal aspects of married life as household or shared financial and social matters and more by the constancy of communication. Although the review applicant has not visited the visa applicant since their marriage there is evidence that he has regularly provided financial support to her. The Tribunal accepts the applicants' evidence that they have regular phone contact. The Tribunal found the applicants credible in their account of their relationship and their feelings for each other. The Tribunal is satisfied on the oral and written evidence before it that the relationship is a genuine and continuing one.

40. The Tribunal finds therefore that the applicants are in a genuine spousal relationship that existed at the time of application and is continuing at the time of this decision. The primary visa applicant meets the definition of spouse as it is set out in regulation 1.15A. The Tribunal is satisfied that the primary visa applicant met the criterion in clause 309.211 at the time of application. As she continues to meet clause 309.211 at the time of this decision the Tribunal finds that she also satisfies clause 309.221

41. Given these findings, the appropriate course is to remit the application for the visas to the Department to consider the remaining criteria for a subclass 309 visa. If the primary visa applicant is found to meet the remaining criteria, then the primary visa applicant is entitled to the grant of a subclass 309 visa.

42. The Tribunal remits the application made by the primary visa applicant for a Partner (Provisional) (Class UF) visa to Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the primary visa applicant meets the following criteria for the grant of a subclass 309 (Spouse (Provisional)) visa::