1702908 (Migration)

[2017] AATA 3063

1702908 (Migration) [2017] AATA 3063 (29 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702908

MEMBER:Kate Millar

DATE:29 December 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 29 December 2017 at 11:00am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Long distance relationship – Language barrier – Did not have joint assets or liabilities – Lived together in Australia for a period of time – Relationship broke down – Multiple statements provided from friends and family – Not persuasive witnesses – Not a committed relationship – Federal court remittal

LEGISLATION
Migration Act 1958, s 5F

Migration Regulations 1994, r 1.15A Schedule 2 cls 820.211, 820.221 Schedule 4 Criterion 4020

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. [Mr A] is a citizen of Albania.  He met [Ms B] through his brother who lives in Australia.  [Ms B] went with his brother to visit [Mr A] in Albania in July 2010, and they were engaged on 5 September 2010.   

2. [Mr A] applied for a Subclass 300 (Prospective Spouse) visa, but this was refused.  In October 2012 he says he was involved in an altercation with a person that led him to fear for his safety so he travelled to [Country 1] and then entered Australia on a false [passport].  He claimed a protection visa on [date] January 2013. 

3. [Mr A] and [Ms B] married in Australia on [date] May 2013, and on [date] June 2013, he applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa and withdrew his application for a protection visa. 

4. His application for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa was first refused as a delegate of the Minister found he did not meet Public Interest Criterion 4020 as he had entered Australia on a false passport. This decision was initially upheld by this Tribunal, but was remitted with the consent of the Minister by the Federal Circuit Court.  The Tribunal then remitted the matter to the Minister for reconsideration in accordance with the direction that [Mr A] met Public Interest Criterion 4020 as the requirements of this provision were waived.

5. The subject matter of this review is that [Mr A]’s applicant was again refused on the basis that he was not the spouse of [Ms B] as defined in the Migration Act 1958 (the Act) and the Migration Regulations 1994 at the time of the visa application.

6. At the time [Mr A] applied for the visa, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations), and include cl.820.211. This requires the person to be the spouse or defacto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen unless certain circumstances are met. As [Mr A] says the relationship has now broken down, he relies one of those circumstances, being that he has been the victim of family violence from [Ms B].

7. The delegate was not satisfied that [Mr A] was in a spouse relationship with [Ms B] before the relationship broke down, and therefore found [Mr A] did not meet the requirement that he had been the spouse of [Ms B]. As a result the delegate found [Mr A] did not meet cl.820.211.

8. [Mr A] has applied for a review of this decision.  He appeared before the Tribunal on 6 September 2017 to give evidence and present arguments, and was represented by his registered migration agent. The Tribunal also received oral evidence from his brother [Mr C] and a friend [Mr D] . The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether [Mr A] was the spouse of [Ms B] and, if so, whether the relationship has broken down and he has suffered family violence.

    Whether the parties were in a spouse relationship at the time of application

11. Clauses 820.211(2)(a) requires that at the time the visa application was made, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

12. [Mr A] claims to have been the spouse [Ms B], who is Australian citizen, until the relationship broke down in 2014.   In issue is whether he was the spouse of [Ms B] as defined by the Act and Regulations.

13. ‘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. People in a married relationship must be:

    ·     Married to each other under a marriage that is valid for the purposes of the Act; and

    ·     There must be a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

    ·     The relationship must be genuine and continuing; and

    ·     The couple must live together, or not live separately and apart on a permanent basis.

14. In forming an opinion as to 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 parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

    History of the relationship

15. [Mr A] said he met [Ms B] on facebook through his brother.  [Ms B] had met his brother when she was working in [a certain industry].  He said they communicated on facebook for eight or nine months before they decided to have a relationship.   

16. [Ms B] travelled to Albania with his brother [Mr C] to meet [Mr A] in July 2010.  He said they visited [European countries] together and travelled to his home so [Ms B] could meet his family, who liked her because she could speak some Italian.

17. [Mr A] said he proposed to [Ms B] on [date] September 2010 and on [date] September 2010 they had a small party with his family before [Ms B] returned to Australia [afterwards].

18. [Mr A] applied for a prospective spouse visa, which was refused approximately 18 months later.  [Ms B] then planned to go to Albania to marry him, but in October 2012 [Mr A] said he was in a fight with a gangster at a club, who threatened to kill him.  He said he thought he was in danger and could not bring [Ms B] to Albania as she would also be in danger.  He travelled to [Country 1] in October or November 2012 and obtained a false passport to travel to Australia.  He arrived in Australia on 17 December 2012, and spent Christmas waiting for his passport And driver license to come from Albania. He was met by his brother when he arrived and says [Ms B] came to see him 2 – 3 days after he arrived and she came to stay at his brother’s house.

19. In his statement provided to the Department, [Mr A] said that [Ms B] visited him at his brother’s house because he did not like to move around as he did not have any documents. 

20. After two to three weeks he went to Immigration with his brother to declare what had happened and to apply for a protection visa.  Four to five months after this he applied for a spouse visa and withdrew his application for a protection visa. 

21. [Mr A] lived with his brother on his arrival in Adelaide until he and [Ms B] rented a property in May 2013. 

22. As [Ms B] [asked] him if she could open a shop, which he thought was a good idea because he could not work.  [Ms B] rented some space in [another store].  They wanted to find a house near the shop, but this was not easy as he could not get a bank account or a credit card due to his lack of identity documents.

23. [Mr A] said they were happy at the beginning and only had small arguments, but behind her presentation as a happy person [Ms B] was unhappy.  She did not speak to her father, her mother had [medical problems].  He was never introduced to her family.

24. After borrowing $10,000 from his brother for the wedding, they married and were planning to buy a house and have children.  His visa application was refused in November or December of 2013 and after that [Ms B] was upset and worried that he could not work as his money was running out.  By 2014 he said she was becoming more aggressive and in March 2014 [Ms B] went on a holiday by herself to [Country 2].  In May 2014 she told him she was pregnant, and he was initially happy as he wanted a baby but worried because he could not work.  [Mr A] said [Ms B]’s behaviour changed and she was rude and started throwing things and going out late.  When she was two to three months pregnant she told him he may not be the father of the baby, but he thought she said that to hurt him.

25. [Mr A] said [Ms B] left him in August 2014.  He tried to call her but she refused to answer. When he went to the business to see her she told him to leave and not to contact her or she would call the police.  He no longer believes he is the father of her child.

26. He went to his brother’s house as his brother was overseas and had to borrow money from a friend for food until his brother returned.  He now lives with his brother.

    Are the parties validly married?

27. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. [Mr A] and [Ms B] married in Australia on [date] May 2013, and were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

28. The factors in r.1.15A(3) must be taken into account in deciding if the parties have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing and whether the parties live together, or do not live separately and apart on a permanent basis. 

29. The parties provided photographs from their wedding with the application, and [Mr A] identified the people in the photograph as [Mr D]’s wife and his wife’s sister, the mother of [Mr C]’s partner.

    Regulation 1.15A(3) factors

30. The factors in r.1.15A(3) must be taken into account in deciding if the parties have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing and whether the parties live together, or do not live separately and apart on a permanent basis. 

    Financial aspects of the relationship

31. The financial aspects of the relationship include:

    (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.

32. [Mr A] said they did not have joint assets or liabilities.  There is nothing to show that either person owed any legal obligation in respect of the other. 

33. [Mr A] says when she visited Albania, [Ms B] paid for her travel to Albania and he paid for hotels where they stayed.  He could not recall the names of the hotels.  He does not have any records from their accommodation or travel as he says transactions in this region all occur in cash. 

34. With the visa application, the parties provided statements for a joint bank account.  This contains four transactions.  On 3 July 2013 and 7 August 2013 cash deposits totalling $700 were made to the account in two separate transactions.  A visa purchase appears for $84.15 on 12 August and a statement fee is charged to the account on 28 August. 

35. A further statement dated 18 September 2013 shows another 10 transactions, with two being a cash deposits of $500, and other debits being births, deaths and marriages, a small amount at a supermarket, [and] a small items at [a business].

36. No further account statements were provided, and on his statutory declaration [Mr A] states that [Ms B] stopped putting money into the joint account early in 2014, however, no statements were provided past October 2013.  [Mr A] said they did not use the account as [Ms B] used cash, her credit card or the accounts for the business and he used cash.

37. Given the limited transactions in this account, I do not consider this account shows they pooled their financial resources to meet day to day expenses. 

38. A copy of a statement for an account in [Ms B]’s sole name was provided.  This shows her day to day expenses are met from her own account and does not show pooling of financial resources.   

39. A lease was provided for a property at [Suburb 1] in joint names for the period 2 May 2013 to 2 May 2015.  A receipt was provided in both names for a bond of $980. [Mr A] provide a gas account in his name for the address at [Suburb 1].  He said it was not until he obtained accounts for the property that he had sufficient identity documents to open a bank account.  [Mr A] said he paid the rent on the property at [Suburb 1] from money borrowed from his brother, and also that once his money ran out [Ms B] paid the rent.  While there is a receipt for the payment of the bond that is in joint names, there is no documentary evidence to show who paid the rent on the property. 

40. A car registration document shows a car registered in joint names.  In his statutory declaration [Mr A] said that this was [Ms B]’s car, and they tried to have it put in both names.  [Mr A] states he paid the car registration for three months on one occasion but did not otherwise pay for the car, and [Ms B] took it with her when she left.  [Mr A] said he was not aware of the insurance arrangements for the car or who paid the premiums.  [Ms B]’s bank account statement shows deductions for insurance.  [Mr A] said there was a loan for the car which [Ms B] paid.  He said the car is still registered in his name but [Ms B] has the car.  He said when she lived in the property he used the car. 

41. [Mr A] said the plan was originally for him to bring $80,000 to Australia, but because of delays and the refusal of the application for a subclass 300 visa, his funds were dissipated and he arrived with approximately $10,000.  In his statement to the Department, [Mr A] said his business in Albania closed in November 2011 due to an unspecified natural disaster. 

42. [Mr A] said before they were married he borrowed $10,000 from his brother for the wedding, and that he later borrowed another $5,000 for living expenses.  That he had to borrow further money for his living expenses does not support a pooling of financial resources.

43. He says the money he brought from Albania was put into setting up [Ms B]’s business with the purchase of [certain items] that cost $6,000 to $7,000.  He does not have any receipts or records of these purchases as he said he gave [Ms B] cash and she bought the goods using cash or her credit card.  The sole invoice provided for supplies for the business is in [Ms B]’s name.  It shows the invoicing address as [Suburb 1], but the delivery address as [Ms B]’s mother’s house.   

44. Once [Ms B]’s business started to build, [Mr A] said he wondered why money was not coming into the account.  [Ms B] ran business through her own account. [Mr A] did not have a credit card or bank account because of his lack of identity documents.   

45. In a further statutory declaration dated 17 August 2017 [Mr A] states his inability to work was the real source of friction between them.  [Mr A] said he did not trust banks so kept his money in cash.  He states he paid to set up her business and the wedding and reception.

46. While there is a joint lease and a joint bank account, there is little evidence other than that of [Mr A] and his brother about any sharing of financial resources. [Mr A] asserts he paid for the set up of [Ms B]’s business, however invoices appear in [Ms B]’s name and at least one [Mr A] provided to the Department dated 4 September 2013, the delivery was to be at her mother’s address. While I accept he contributed to the business, I do not accept it was as extensive as he suggests. 

    Nature of the household

47. The nature of the household includes:

    (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

48. [Ms B] and [Mr A] do not have any children.  He said [Ms B] was pregnant when she left, but that the child is not his child.  They currently live apart.

49. In the period prior to the visa application, [Ms B] had visited Albania, and [Mr A] said they travelled together.  He does not have any documentary evidence of where they have been or receipts as all transactions were in cash, as he states everything in Albania is done in cash. 

50. At the time of the application in June 2014, they had been married and were living at [Suburb 1].  Before then, he lived with his brother.   On being asked why both his and [Ms B]’s address on the marriage certificate was her mother’s address, he said she used an old address when they met with the celebrant as the celebrant was busy and he didn’t know his current address.

51. With the visa application, the parties provided copies of their driver’s licenses showing each of their addresses at the same address in [Suburb 1]. [Ms B]’s previous address as it appears on her driver’s license is [address].  An expiation notice addressed to [Ms B] contains the [Suburb 1], as does a car registration.

52. [Mr A] stated that [Ms B] lived with him at his brother’s house when he arrived in Adelaide, however there is no documentary evidence placing her at this address as her address remained at her mother’s house. It is not consistent with his statement to the Department that [Ms B] visited him at his brother’s house.   In the absence of other supporting evidence, and [Ms B]’s continued use of her mother’s address I am not satisfied that they lived together at his brother’s address. 

53. In the advice to the Department that the sponsorship was withdrawn [Ms B] stated they had separated, which supports that she lived with [Mr A] for a period of time.  I accept they both used the [Suburb 1] address and both resided there for a period of time.

54. In regard to sharing responsibility for housework, [Mr A] said as [Ms B] was working and he was not, he was the wife and did the cleaning.  He said he paid bills at the post office.  They would sometimes cook together, but he did more of the cooking. 

    Social aspects of the relationship

55. The social aspects of the relationship include:

    (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

56. [Mr A] said that “of course” they represented themselves to others as married, and that other people would know they were married because they were always together and would present as husband and wife.

57. With the visa application, written statements were provided from [Mr E] who states he has known [Mr A] and [Ms B] since they were engaged in Albania, and that after [Mr A] came to Australia he has seen them regularly for coffee. [Mr E] states he believes the relationship is genuine because they love each, are living together, are married and have plans for the future.  [Mr A] said he no longer has contact with [Mr E] and cannot recall when he lost contact with him. 

58. [Mr C] provided a statement with the visa application stating he has known [Ms B] for five years and he sees them often at their house.  [Mr A] states the relationship is genuine because they will always love each other and have been waiting a long time to be together. 

59. [Ms F] provided a statutory declaration stating she has known [Ms B] for many years as they worked together, and has known [Mr A] for three years since their but first met him 6 months prior to her statements.  [Ms F] states she believes the relationship is genuine and will continue as they are living together and love each other. 

1. A statutory declaration was provided by [Mr D] who states he has known [Mr A] and his family for 10 years, and that are from the same area in Albania.  He states he has known [Ms B] since she became engaged to [Mr A], and he had seen them quite often since [Mr A]’s arrival in Australia including having been to each other’s house for dinner.  [Mr D] declares he believes the relationship is genuine because they look in love and have sacrificed a lot for each other.  A further statutory declaration from [Mr D] was provided dated 17 August 2017. 

2. [Mr A] provided documents from his application for a subclass 300 visa, which included statements from each of his parents in support of the relationship, as well as a further stamens from [Ms B] reiterating how they met and her travel to [Europe]. 

3. [Mr A] says he did not meet [Ms B]’s family, and said this was because she was estranged from her family.  However it became apparent that prior to living with him, [Ms B] had lived with her mother and her mother’s boyfriend for many years.  He said after he arrived [Ms B] lived with him as [Mr C]’s house and only went to her mother’s house to collect her mail, however I am not satisfied in the absence of other evidence that she relocated to his brother’s house.  [Ms B] has a twin sister, and [Mr A] said she has no contact with her twin.  She also has a younger sister she does not speak to.  On being asked why he a long time before she was with [Mr A], he said she did not want him to meet her mother because her mother is a junkie who uses drugs.  [Mr A] said they did not spend much time with other people. 

4. In regard to any joint social activities, [Mr A] said he was usually with [Ms B] and they would go out for coffee, for inner and to the beach.  They did not travel together in Australia as they did not have any money.  On being asked if they spent time with friends, [Mr A] said they spent time with [Mr D].  He said on the birth of [Mr D]’s son they went to his house for dinner.  [Mr A] said [Mr D] did not visit their house, but they would go out for coffee.  He could not recall any other social occasions.

5. [Mr A] provided photographs, the majority of which were taken on [Ms B]’s visit to Albania.  These photographs show [Mr A] and [Ms B] on their engagement, one photograph is stated to be with [Mr A]’s parents and two photographs are taken with the same two people and are labelled as photographs with friends.

6. A number of photographs are from the wedding, with the attendees being [Mr C], [Mr C]’s former business partner, [Mr D]’s wife and his wife’s sister, [Ms B]’s friend [and] the mother of [Mr C]’s partner. 

7. [Mr A] said of course he saw the relationship as long term because he proposed to [Ms B] and that she saw her future with hum. 

   Nature of the persons commitment to each other

8. This includes:

   (i)        the duration of the relationship; and

   (ii)       the length of time during which the persons have lived together; and

   (iv)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.

9. [Mr A] said the nature of their commitment was to each other.  He said he considered they were in a relationship since they started talking over facebook in 2010, three months before [Ms B] went to Albania.  He said they considered they were boyfriend/girlfriend form May 2010.

10. By the time of the application, [Mr A] said they had been in contact over facebook from 2010 for at least 8 months.  He said he does not have any records of this contact as he deleted his facebook account after the problems in Albania in 2012.  He does not have any records of telephone contact with [Ms B] as he would need an order from a judge to obtain records attached to the SIM card he used. At the time they met they did not have a common language, and [Ms B] spoke some Italian.

11. [Mr A] states they spent time together when [Ms B] went to Albania from 23 July 2010 to 19 September 2010.  On his arrival in Australia, he lived with his brother from December 2012 until May 2013, when he says he moved in with [Ms B] at [Suburb 1].

12. On being asked how, in June 2013, they provided each other with companionship and emotional support, [Mr A] said when he came to Australia he was worried about his visa and about work and [Ms B] helped him with everything and told him it would be OK.  He said he would show he cared by his behaviour rather than by talking and [Ms B] was also not good at talking.  According to [Ms B]’s statement, at the time they met they did not have a common language, although both had some Italian.  The lack of communication and the ability to communicate effectively does not support a high level of companionship and emotional support. 

13. [Mr A] states he planned to work [when] he was able and to support [Ms B] and himself.  He states he planned to buy a house and then they would have two children. 

14. While it is acknowledged the nature of a relationship can relationship can change suddenly, that the relationship broke down within approximately one year of the application does not support that at the time of the application they drew companionship and emotional support from each other or that [Ms B] saw the relationship as long term.   [Mr A] said that his problems with [Ms B] were financial, however if they provided each other with the level of companionship and emotional support he asserts, this would have been apparent to [Ms B] before he arrived.

15. This lack of commitment is also shown by [Ms B] taking a separate holiday to [Country 2] and becoming pregnant as a result of another relationship or liaison. 

    Any other relevant considerations

16. I did not find [Mr A] or his brother persuasive witnesses.  They are highly motivated to obtain an outcome where [Mr A] remains in Australia, and state this is because of his fear of returning to Albania.  This provides a strong incentive to give evidence in favour of the relationship having existed prior to it breaking down.  

17. [Mr A] states that [Ms B] withdrew her sponsorship of him in June 2014, and as the sponsorship was on foot for four year this shows the relationship is genuine. I do not consider that sponsorship in itself shows that the definition in s.5F is met.

CONCLUSION

1. Having considered all of the information before me, I am not satisfied that [Mr A] and [Ms B] had a mutual commitment to a shared life to the exclusion of all other at the time of the visa application, or that the relationship was genuine and continuing at the time of the visa application.

2. As a result I am not satisfied that at the time of the visa application [Mr A] was the spouse of [Ms B] as defined by the Act.  As a person must first have been the spouse of an Australian citizen before the relationship broke down to access the provisions relating to family violence, it follows that the question of whether [Mr A] suffered family violence does not arise. 

3. This means [Mr A] does not meet cl.820.211 or 820.221 of Schedule 2 of the Regulations and the decision under review is affirmed.

   DECISION

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

   Kate Millar
   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).