1613052 (Migration)

[2018] AATA 2514

1613052 (Migration) [2018] AATA 2514 (19 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613052

MEMBER:Scott Clarey

DATE:19 June 2018

PLACE OF DECISION:  Melbourne

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

STATEMENT MADE ON 19 JUNE 2018 AT 11:28AM

CATCHWORDS

Migration –  Partner (Residence) (Class BS) – Subclass 801 (Spouse) – Genuine relationship – Insufficient evidence of relationship – Domestic violence allegations – Relationship breakdown – No joint finances – Live separately – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5F, 65, 359AA

Migration Regulations 1994, r 1.15A Schedule 2 cl 801.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 August 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 August 2012 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.801.221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied the applicant was the spouse of [Ms C].

4. The applicant (herein [Mr A]) appeared before the Tribunal on 31 May 2018 to give evidence and present arguments. He was unrepresented in this appeal to the Tribunal. The Tribunal also received oral evidence from [Mr B] (witness). The sponsor (herein [Ms C]) did not attend the hearing.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant is the spouse of [Ms C] as defined in s.5F of the Act.

7. The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Department’s decision record provided by the applicant to the Tribunal.

   THE HEARING

8. At the commencement of the hearing, [Mr A] gave oral evidence that his marriage to [Ms C] had broken down and that the parties had separated on a permanent basis in early October 2017 when [Mr A] moved out of the [Suburb 1] unit he shared with [Ms C]. [Mr A] gave oral evidence that he believed the separation was permanent and that he intended to divorce [Ms C].

9. The applicant presented one witness, [Mr B] (who the applicant claimed is no relation to him), at the Tribunal hearing. The witness stated that he had known the couple for a long time and had attended their wedding in 2012. He told the Tribunal he was aware of the breakdown of the relationship and outlined a number of reasons why he thought this had occurred, primarily relating to alleged behaviours and activities of [Ms C]. The witness said that, prior to the breakdown of the applicant’s spousal relationship, the applicant had told him [Ms C] had been spiking the applicant’s food with drugs. The witness said he was initially not inclined to believe the applicant’s claim as the applicant had not been in a good frame of mind around this time due to the problems in the relationship. However when the witness next saw the applicant in person, he observed significant weight loss in the applicant and said he was then inclined to believe his claims that he was drugged by [Ms C].

10. The Tribunal questioned the applicant about these claims. [Mr A] said that he believed his wife had been surreptitiously spiking his food with what he described as “[certain types of] drugs”, which he claimed were causing symptoms including [details deleted]. [Mr A] said that he confronted his wife with these accusations but she denied them. [Mr A] stated that he had no evidence to corroborate these claims. In the absence of any supporting evidence, the Tribunal gives no weight to these claims.

    s.359AA

11. Allegations contained in an email dated 14 November 2017 sent to the Department were put to [Mr A] at the hearing in accordance with s.359AA of the Act. The Tribunal informed [Mr A] that it wished to put new information that it would consider being the reason or part of the reason for affirming the decision under review. The Tribunal explained the relevance and the consequences of the information to [Mr A] and invited him to comment on or to respond to the information. Pursuant to s.359AA(1)(b)(iii) of the Act, the Tribunal advised [Mr A] that he may seek an adjournment to consider his position before responding to the information. [Mr A] declined to take an adjournment and responded orally.

12. Given the sensitive nature of the information, the Tribunal chose not to disclose the identity of the author of the email in accordance with s.359A(4)(c) of the Act. The Tribunal considered the author of the email’s identity to be non-disclosable information, as defined in s.5 of the Act, because its disclosure would found an action by a person, other than the Commonwealth, for breach of confidence.

13. The Tribunal put to [Mr A] the allegations that he had been violent toward [Ms C] during the course of their relationship. [Mr A] responded that this allegation was “totally false”. [Mr A] recalled a particular incident when the police had been called to the residence he shared with his wife prior to their separation after an argument they’d had over money. The police had attended and asked [Mr A] to leave the property for the evening so that the couple could cool off. [Mr A] denied that he had engaged in any violent conduct toward his wife on this occasion or at any other time. [Mr A] stated that while the relationship was at times volatile and the couple had argued, there was no violence of any kind within the relationship.

    Whether the parties are in a spouse or de facto relationship

14. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of [Ms C] who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that [Ms C] is the ‘sponsoring partner’ of the applicant.

15. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a) - (d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’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.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The parties were married on 8 May 2012 in Victoria. A copy of the registered marriage certificate is on the Tribunal’s file. 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 other requirements for a spousal relationship met?

17. After careful consideration of all of the evidence before it, the Tribunal has reached the conclusion that it is not satisfied the applicant is the spouse of [Ms C] within the meaning of s.5F of the Act. The Tribunal sets out below its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3) and the reasons for its decision.

18. The Tribunal had the benefit of hearing oral testimony of both the applicant and the witness at the hearing. The Tribunal has given all of the evidence before it (which includes the documentary evidence that was submitted with the primary application and the additional evidence before the Tribunal) due regard in reaching its decision.

    Financial aspects

19. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses and any combined future financial commitments or plans.

20. The applicant gave oral evidence at the hearing that his financial dealings with [Ms C] ended with the breakdown of the relationship in early October 2017. [Mr A] said that [Ms C] had asked for money once since the marriage had broken down but he had declined her request. Although the parties had previously maintained a joint bank account, [Mr A] had not accessed the account since the separation in October 2017.

21. By the applicant’s own admission he has had no financial dealings with [Ms C] since the relationship broke down in October 2017. [Mr A] told the Tribunal that there were no other joint assets or combining of finances. [Mr A] said that he and [Ms C] did not currently share any household costs or bills. At the time of this decision, the Tribunal does not have any information before it that the parties are currently pooling financial resources or sharing day-to-day household expenses.

22. There is no other evidence of any joint liabilities and/or legal obligations owed by the parties in respect of each other.

23. The Tribunal places strong weight on this factor in concluding that, at the time of this decision, [Mr A] is not the spouse of [Ms C].

    Nature of the household

24. The Tribunal has considered the nature of the household including any joint responsibility for the care and support of children, living arrangements of the parties and the sharing of the responsibility for housework.

25. [Mr A] gave oral evidence that he moved permanently out of the [Suburb 1] unit he shared with [Ms C] in early October 2013. He has not returned to the property since that date. [Mr A] told the Tribunal that for the last 7-8 months, since the breakdown of the relationship in October 2017, he had lived with two friends in a property in [Suburb 2].

26. The Tribunal finds that that because the parties live separately from each other in different places, they each do their grocery shopping, cooking and cleaning independently of the other.

27. The Tribunal notes that there is no evidence of any joint responsibility for the care and support of children. [Mr A] told the Tribunal that he and [Ms C] did not have any children together. The Tribunal accepts [Mr A]’s oral evidence.

28. The Tribunal finds that the evidence establishes that the parties do not share a house at the time of this decision.

29. The Tribunal is mindful that the parties need not live together. Rather, s.5F(2)(d) will be met if they do not live separately and apart on a permanent basis. The Tribunal considers that the evidence suggests that the parties are living separately and apart on a permanent basis. The Tribunal accepts [Mr A]’s oral evidence that they have separated from one another on a permanent basis and that he intends to divorce [Ms C].

30. The Tribunal places great weight on this factor in its consideration of whether the parties are spouses for the purposes of s.5F of the Act.

    Social aspects

31. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being de facto partners, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

32. [Mr A] told the Tribunal that since the breakdown of the marriage in early October 2017 he had been in limited phone contact with [Ms C], had seen her in person only once. The Tribunal finds that since the parties separated, they undertake no joint social activities together.

33. The Tribunal places some weight on the social aspects of the relationship in finding that, at the time of this decision, the parties are not spouses.

    Commitment

34. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length and time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

35. At the hearing, the review applicant gave oral evidence that the marriage had broken down and the parties had separated on a permanent basis in early October 2017 when [Mr A] moved out of the [Suburb 1] unit he shared with [Ms C]. [Mr A] gave oral evidence that the separation was permanent and that he intended to divorce [Ms C].

36. The Tribunal considers that the evidence establishes that, at the time of decision, the parties do not have a mutual commitment to a shared life as a married couple to the exclusion of all others, and the evidence is that their relationship is not continuing.

37. The Tribunal gives strong weight to its view of the nature of each person’s commitment to the other in its consideration of whether the parties are in a spousal relationship at the time of decision.

38. Having had regard to the circumstances of the parties’ relationship, as required by r.1.15A(3), and after considering all the evidence before it, the Tribunal finds that [Mr A] does not satisfy the requirements for a spouse relationship contained in s.5F of the Act. The Tribunal is not satisfied that, at the time of this decision, that [Mr A] and [Ms C] have a mutual commitment to a shared life as a married couple to the exclusion of all others, or that the relationship is genuine and continuing. They therefore do not satisfy s.5F(2)(b) and (c). On the basis of the evidence provided, the Tribunal cannot find that the parties live together, or do not live separately and apart on a permanent basis, and therefore finds that s.5F(2)(d) is not met.

39. Given these findings the Tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant does not meet cl.801.221(2)(c).

40. Furthermore, [Mr A] has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221(2A), (3), (4), (5) or (6).

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

    DECISION

42. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Scott Clarey
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    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 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).