1502031 (Migration)

[2016] AATA 3476

1502031 (Migration) [2016] AATA 3476 (26 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MEHEDI HASSAN MARUF

CASE NUMBER:  1502031

DIBP REFERENCE(S):  CLF2012/94340

MEMBER:Kira Raif

DATE:26 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 26 February 2016 at 7:37am

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 27 January 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Bangladesh, born in March 1985. He first travelled to Australia on a Student visa in June 2006. The applicant applied for the Partner visa on 11 May 2012 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl. 820.221 because the delegate was not satisfied the applicant was the de facto partner of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 15 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the sponsor’s son and the applicant’s two friends. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen.

6. ‘De facto partner’ is defined in s.5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

7. In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3).

   Are the parties in a de facto relationship?

8. The Tribunal acknowledges that a substantial amount of documentary evidence has been presented with the application and to the Tribunal, which seeks to address the various aspects of the relationship. However, such evidence does not satisfy the Tribunal that the relationship is that of spouses or is a genuine one. Such evidence does not overcome the Tribunal’s concerns noted elsewhere. The Tribunal is of the view that if the relationship were not a genuine one, it would still be possible to prepare, or obtain, a substantial amount of evidence of the kind that has been presented with application, such as the phone bills, letters and emails, photographs and evidence of joint activities, overseas travel and statements from third parties. In the Tribunal’s view, such evidence may be available whether or not the parties are in a genuine relationship and whether or not both have commitment to such a relationship. That is, the fact that the parties have taken steps to obtain such evidence does not necessarily reflect on the nature of their relationship. It may equally reflect on their commitment to prepare evidence that the parties perceive as being necessary to show in a spouse case to achieve a favourable outcome. More is needed to satisfy the Tribunal that the relationship is genuine and that there is a genuine commitment to the relationship. The parties have not done that.

9. The Tribunal has considerable concerns about the parties’ description of their relationship development. The applicant claims he helped the sponsor carry her shopping and she invited him to her house and gradually their relationship developed. Both gave vague descriptions of these events in their oral evidence to the Tribunal.

10. The Tribunal is also concerned by the fact that this application was made within three weeks of the applicant’s Student visa expiring. The applicant informed the Tribunal his decision to form the relationship had nothing to do with the expiry of his Student visa and he made the application when the relationship was serious and committed, however, the Tribunal is unconvinced by such a coincidence, given the close period between the expiry of the Student visa and the application for the Partner visa. The Tribunal is concerned that the applicant entered the relationship to be able to remain in Australia without paying the substantial tuition fees as an international student. Although the Tribunal acknowledges that this does not necessarily preclude the existence of a genuine relationship, in this case the Tribunal has formed the view that such a relationship does not exist.

11. The parties’ oral evidence about various events in their lives that existed at the time they claim they started a relationship was in many respects inconsistent. For example,

    a.The couple gave inconsistent evidence about the applicant’s work as a taxi driver, including the times when he started and finished his shifts. The applicant said he worked as a taxi driver between 2011 and 2014. The sponsor said he worked as a taxi driver for four to five years.

    b.The applicant said he completed a Diploma of Hospitality Management and then a Diploma of Business Management. The sponsor said he did not complete the Business Management course and she was not sure if he completed the Hospitality Management course. The sponsor said the applicant did the Hospitality Management course first and then the Business Management course while the applicant claims he completed the hospitality course first. The sponsor could not state whether the applicant successfully either of the two courses and did not which institution he attended.

    c.The sponsor also informed the Tribunal said the applicant did the hospitality management course before they met. The applicant said he completed that course in 2009 and the parties claim to have met in 2008.

    d.The applicant said he studied 4-5 days per week in both courses. The sponsor said he always studied 5 days a week.

12. The Tribunal is mindful that at the time the applicant attended these courses, the parties claim to have been in a relationship and to have been meeting at least a couple of times a week. In such circumstances, the Tribunal would expect them to have some knowledge about each other’s circumstances. Their lack of knowledge suggests to the Tribunal that they had not been truthful in their description of the relationship.

13. The Tribunal has assessed the parties’ financial circumstances. The applicant presented to the Tribunal evidence of their joint accounts showing various transactions, and a variety of bills in joint names. The Tribunal accepts that the applicant and the sponsor opened and operate a joint account and that they requested various authorities to put both names on the accounts. They gave consistent evidence about each other’s income. However, aspects of their oral evidence cause the Tribunal to question whether the parties do in fact share their resources. For example, the applicant informed the Tribunal that he has two accounts at Commonwealth bank, two accounts at ANZ and maybe an account at Westpac, although he was not sure if it was operational. The sponsor however informed the Tribunal that the applicant had one account at the Commonwealth bank and one at ANZ. She was certain he had no other accounts. The applicant explained to the Tribunal that he had one account in each of these banks which were linked to different accounts. The sponsor appears to have been unaware of the arrangement and had no knowledge of the Westpac account.

14. Further,

    a.The applicant informed the Tribunal there is about $250 – $300 in the joint account at the Commonwealth bank. The sponsor said they have $6 in that account. The applicant said there is less than $50 n in the sponsor’s account. The sponsor said there is less than $100 in that account.

    b.The applicant said he sends between $200 and $400 to his family every month. The sponsor said he has not sent for a few months and he used to send $100 or more if he had more money. The sponsor appears to have been unaware of how much the applicant had been sending regularly to his family and she also did not know how the money was transferred.

15. The Tribunal has formed the view that the parties do not have adequate knowledge about each other’s finances, despite making an effort to establish evidence of shared resources. The Tribunal is concerned that such documentary evidence was only established for the benefit of the applicant’s visa application. Indeed, the applicant informed the Tribunal that one of the reasons for refusing the primary application was because they did not have a joint account and that is the reason they opened an account. The Tribunal is not satisfied that the joint accounts and the joint bills represent the couple sharing their resources. The Tribunal is not satisfied the partners have joint liabilities, that they pool their finances resources or that they have legal obligations towards each other. If they do share day to day household expenses, the Tribunal is of the view that they do so for the benefit of the visa application and not as a representation of their commitment to the relationship.

16. The Tribunal has considered the nature of the household. The applicant presented to the Tribunal a number of letters sent to the same address, as well as a statement from the sponsor’s landlord confirming the applicant’s residence in her apartment. The Tribunal is mindful that the authorities sending correspondence to the applicant at the sponsor’s address would not have conducted any independent verification of the couple’s living arrangements, so the fact that letters are sent to a particular address does not necessarily indicate that the applicant lives there.

17. The couple provided oral evidence about their living arrangements that was broadly consistent and the Tribunal is prepared to accept that they do live together. However, the Tribunal is not satisfied they have established a joint household because the Tribunal has formed the view the discrepancies in their oral evidence are not consistent with cohabitation and a joint household. For example,

    a.The applicant informed the Tribunal he had been working with his current employer for about a year and a half. The sponsor does not know the name of the restaurant where the applicant works.

    b.The applicant said he starts his shifts at 9 am. The sponsor said he starts at 8 or 8.30 am. The sponsor said it takes him 25-30 minutes to get to work. The sponsor said half an hour to an hour to get to work depending on traffic.

    c.The applicant said he plays cricket once a year because he is busy with work. The sponsor said he plays every Monday with his friends. The applicant explained that they play a match once a year but he plays during the week when he meets friends and when he gets a chance. Neither party offered that explanation when asked.

    d.When asked about daily activities, the applicant said they like to watch comedy movies. The sponsor said the applicant likes Indian movies and any kind of movie, he has no favourites. The applicant said they enjoy watching wrestling but the sponsor made no mention of wrestling. The applicant said he sometimes watches Indian movies but not often, which contradicts the sponsor’s statement that he enjoys Indian movies.

18. In the Tribunal’s view, if the parties did live together and established a joint household, such matters would be known to them. There are other matters, outlined below, which suggest the applicant does not have adequate knowledge about the sponsor. Again the Tribunal is of the view that such lack of knowledge indicates that the couple have not established a joint household.

    a.The visa applicant said the review applicant received a Carer allowance to care for her ex-husband. He was not sure what the sponsor told Centrelink about her relationship with the ex-husband. The Tribunal notes that according to the applicant’s evidence, the sponsor started to receive the Carer allowance after the couple started living together.

    b.The applicant did not know when the sponsor last worked, stating only it was before they met. 

    c.The sponsor had difficulties explaining why the sponsor was not able to get a job when receiving the Newstart allowance. He stated that he did not allow the sponsor to work since he was financially supporting her but that would not have entitled her to receive the Cenrelink payments.

    d.The applicant did not know when the sponsor separated or what caused the separation other than to say they were not happy in together.

    e.The applicant could not recall the date of the sponsor’s divorce, even though he specified the exact date on the application form and provided with his application a copy of the sponsor’s divorce certificate. Significantly, the applicant informed the Tribunal that the sponsor formally divorced before they formed a committed relationship. He claims they commenced a committed relationship before the end of 2011. However the divorce certificate shows that the sponsor divorced in November 2011 and the decree nisi became absolute in December 2011. That appears to contradict the applicant’s evidence that they formed a committed relationship after the sponsor’s divorce. The applicant explained that it took time to divorce but the Tribunal’s questions were about the formal divorce, not the commencement of the proceedings.

    f.The applicant was not certain about ages of the sponsor’s children, despite claiming a close relationship with the sponsor’s son.  

    g.The applicant said when he moved in to live with the sponsor in late 2011, the sponsor’s daughter was going to a school in Marrickville and the school was only ten minutes away from home. The sponsor said it was too hard for her daughter to get to school because it was too far and that is the reason her daughter dropped out of school and went to find a job.

19. In the Tribunal’s view, if the couple did live together as they claim, they should have a better awareness of such matters.

20. The applicant included with his application a copy of the statement from the sponsor’s landlord permitting the applicant to reside at that address. The letter is dated December 2011 and refers to the applicant as a ‘friend’. Both partners claim that by December 2011 they had developed a committed relationship and that the applicant had moved to the sponsor’s address on a full-time basis. Neither party was able to offer a satisfactory explanation why the letter refers to the applicant as being a friend in December 2011.

21. The Tribunal is prepared to accept that the parties live together, however, the Tribunal is not satisfied they have established a joint household.

22. The Tribunal has considered the social aspects of the relationship. There are several written statements from friends and relatives submitted with the primary application and considerably more evidence is before the Tribunal. The sponsor’s son and two of the applicant’s friends gave oral evidence to the Tribunal. The Tribunal accepts that the declarants and witnesses are aware of the relationship and the Tribunal is prepared to accept that they view it as a genuine one.

23. The Tribunal considers some aspects of the parties’ evidence in relation to the social recognition of the relationship to be problematic. For example,

    a.The applicant had no knowledge of the sponsor’s family and knew nothing about her siblings or her mother. The Tribunal acknowledges the sponsor’s explanation that she does not have a close relationship with her family and has little or no contact with them and while the Tribunal accepts that this may be a reason the applicant has not met her family, the Tribunal is not entirely satisfied this explains his lack of knowledge about the sponsor’s family and why the parties could not have talked about family matters, even if there was no possibility of a meeting.

    b.The sponsor also appears to have little information about the applicant’s family. The applicant informed the Tribunal the sponsor’s son works as a storeman. The sponsor said he works as a forklift driver and had the same role in his previous job. The applicant said the sponsor’s daughter works as a store manager. The sponsor said she used to work as a store manager but since she returned to work after giving birth, she no longer works as a store manager.

    c.The applicant said the sponsor’s daughter works 1-2 per week. The sponsor said she works 3 days per week. The applicant explained this by stating that her work is casual and maybe she works extra shifts. Neither party offered that explanation when initially asked. The Tribunal also notes the applicant’s evidence that the sponsor visits her daughter regularly, several times a week and babysits when the daughter is at work. In such circumstances, the Tribunal would expect the applicant to know how many days the daughter spends at work each week.

    d.The sponsor did not know what the applicant’s siblings do. The applicant said one of his sisters is studying accounting. The sponsor said neither of the sisters do anything and both are housewives. She did not know what the applicant’s brothers do. The Tribunal notes the applicant’s evidence that he has frequent contact with his family and speaks to them weekly. The applicant’s evidence is that the sponsor also speaks to his family sometimes. In such circumstances, the Tribunal would expect the sponsor to have better knowledge about the applicant’s immediate family.

24. The Tribunal accepts that there is some social recognition of the relationship and accepts that the parties had socialised together as a couple. The Tribunal accepts that some of the couple’s friends and relatives believe the relationship to be a long term one. However, the Tribunal has formed the view that the partners take little interest in each other’s families and that they do not discuss family matters with each other.

25. The Tribunal has considered the nature of the persons’ commitment to each other. The Tribunal acknowledges the parties evidence that they met in 2008 and formed a committed relationship by the end of 2011. However, for the reasons stated above, the Tribunal has formed the view that the parties do not have adequate knowledge about each other’s daily lives and for that reason, the Tribunal is not satisfied they take much interest in each other or that they rely on each other for companionship and emotional support.

26. The applicant informed the Tribunal he always wanted to do study accounting and if he has an opportunity, he would return to university to do an accounting course. The sponsor said they had not discussed what the applicant might want to study and she did not know what he wants to study. She then said that may be he will do accounting or a management course. When asked why the sponsor appeared to be unaware of this plan, the applicant suggested it was his dream and he has not discussed it with his partner. The Tribunal is of the view that sharing future aspirations is a part of a committed relationship.

1. The Tribunal questioned the parties about their future plans. They both said they plan to purchase a house. However, their evidence about how they could afford to do was problematic, as both informed the Tribunal they have no savings and have not started saving any money for the new home. The Tribunal is not convinced that plan is realistic. The Tribunal has formed the view that the plan to purchase a house was something the parties thought they needed to inform the Tribunal about but not a realistic aspiration.

2. In their post-hearing submission to the Tribunal the sponsor explained that she has a good knowledge about her husband but has poor memory and due to nervousness she could not respond to the Tribunal’s questions. The Tribunal does not accept that evidence. No medical evidence has been presented to show that the sponsor has any problems with her memory and in the Tribunal’s view, such a claim is nothing more than an attempt to explain the inconsistencies in evidence. Both the applicant and the sponsor offered to the Tribunal explanations for the differences in their oral answers and further information about their circumstances. However, the purpose of the questions posed at the hearing was not necessarily to obtain such information but to check the couple’s awareness of each other and to test their evidence. In such circumstances, their post-hearing explanations drafted together do not demonstrate the couple’s awareness of each other and do not satisfy the Tribunal that they do live together as husband and wife in a genuine and committed relationship. The Tribunal prefers their oral evidence.

3. The Tribunal acknowledges that the parties had known each other since 2008 and the Tribunal accepts that the y had been living together for a number of years. The Tribunal accepts that they socialise together and that their relationship is known to others. The Tribunal accepts they operate a joint bank account and have established many of their commitments in joint names. Against these consideration, the Tribunal has formed the view that the parties do not have adequate knowledge about each other and the Tribunal is not satisfied they have established a joint household, even if they live together. The Tribunal is not satisfied the parties provide each other with emotional support or that they view the relationship as a long term one and while there may be some degree of financial interdependence, the Tribunal  is no satisfied they pool their resources or that they genuinely share their resources. The Tribunal is not convinced that the parties gave a credible account of how their relationship developed. Overall, the Tribunal is not satisfied that the applicant and the sponsor have a mutual commitment to a shared life together. The Tribunal is not satisfied that their relationship is genuine and continuing. The Tribunal is not satisfied that they live together or do not live separately and apart on a permanent basis. The Tribunal reaches these conclusions despite the substantial amount of documentary evidence submitted to the Tribunal and with the primary application.

4. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time of application and of the decision. Therefore the applicant does not meet cl.820.211 and cl.820.221.

   Conclusion

5. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Kira Raif
   Senior Member