1703303 (Migration)

[2017] AATA 3045

1703303 (Migration) [2017] AATA 3045 (13 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703303

MEMBER:Nicola Findson

DATE:13 December 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made on 13 December 2017 at 12:45pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Requirement for there to be a genuine and continuing spousal relationship – Adverse information on departmental file – Lack of evidence of spousal relationship

LEGISLATION
Migration Act 1958, ss 5F, 65, 359AA, 375A
Migration Regulations 1994, r 1.15A, Schedule 2, cl 820.211

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 of a delegate of the Minister for Immigration [in] February 2017 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The primary [applicant] is a [age] year old national of Vietnam. She applied for the visa [in] April 2016 on the basis of her relationship with her [sponsor], a [age] year old Australian citizen. At that time, 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). 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(a). Whilst satisfied that the primary applicant was married to her sponsor at the time of the visa application, the delegate was not satisfied they were in a genuine and continuing spousal relationship.

4. The applicant was provided with assistance from a registered migration agent during the application process.  However, she was unrepresented in relation to the review. 

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

   BACKGROUND

6. The applicant first arrived in Australia, as the holder of a subclass 300 Prospective Marriage visa, [in] August 2015.  She married the sponsor [later in] August 2015 and lodged the current application for a partner visa [in] April 2016. 

7. The applicant has three children from a previous relationship, who are listed as dependants of the applicant, and who have been in the care of the Department of Child Protection for the majority of the time that they have been in Australia. 

   The Departmental file

8. The Tribunal has before it the Department’s file relating to the applicants, which includes the following documents:

   ·Forms 40SP and 47SP completed by the applicant and her sponsor;

   ·A certified copy of the Marriage Certificate issued to the primary applicant and the sponsor, recording they were married in [City 1 in] August 2015;

   ·Certified copies of passports of all the applicants;

   ·Certified copy of the sponsor’s passport and his Australian citizenship certificate dated [in] 1990; and

   ·Statutory declarations of the applicant and sponsor in support of the application.

9. In her statutory declaration, sworn [in] April 2016, the applicant states:

   I arrived in Australia with my 3 children [in] August 2015.  I was sponsored by [the sponsor] for a Prospective Marriage visa (subclass 300) granted in Vietnam [in] July 2015.

   We were married [in] August 2015 in a Civil ceremony in [a] suburb of [City 1].

   We have lived together since that time.

   We moved to our own house in October 2015.  The children were taken into the care of the Department of Child Protection in October after they were beaten by my [relative].  We had been sharing a house with my sister when we first arrived.  Since then we moved out and now do not contact my sister.

   We are hoping that the children will be returned later this month.  We have visited them every [week].

   I am happy with my husband and look forward to having our family together again.

10. The sponsor’s statutory declaration, sworn [in] April 2016, states:

    I sponsored [the applicant] for a Prospective marriage visa in 2012 and it was granted in July 2015.  We were married [in] August 2015, soon after she arrived in [City 1].

    I am not sure of the exact date when I met [the applicant] in Vietnam but it was in [May], about 4 weeks after I arrived there.  I do not have my old passport so I am unable to check the dates.  The date on the forms is estimated as closely as possible.

    I am not working at present because I have been receiving treatment for [a condition] at [a hospital].  I am [occupation] by profession and I hope to return to work when I am better. I am supporting [the applicant] and the children on my Centrelink payments.

    I want to live with [the applicant] for the whole of my life.

11. [In] January 2017, the Department wrote to the primary applicant and sought comments on adverse information in the form of an allegation that had been provided to the Department by a third person.  The Department also requested additional information to support the application. 

12. At the time the delegate made her decision, no comments on the adverse information or any further information to support the application had been provided to the Department.

13. The delegate considered that there was insufficient evidence and information to demonstrate that the primary applicant was in a spousal relationship with the sponsor.

    Application for review

14. On 27 February 2017, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application.

15. On 7 June 2017, the Tribunal wrote to the applicant and invited her to provide further information to support her claims that she and her sponsor are in a spouse relationship.  The applicant did not respond to this letter.

16. The applicant was invited to appear before the Tribunal on 14 September 2017, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

17. The hearing invitation sent to the applicant indicated that the Tribunal may wish to take evidence from the sponsor, however, he did not attend the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the primary applicant was at the time of the visa application, and remains at the time of the making of this decision, the spouse of the sponsor.

    Whether the parties are in a spouse or de facto relationship

19. Clauses 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 spouse of the sponsor who is an Australian citizen.

20. ‘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 husband and wife 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 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.

    Are the parties validly married?

21. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant enclosed with her visa application a [Marriage] Certificate indicating she was married to the sponsor [in] August 2015. 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 requirements for a spousal relationship met?

    The hearing

22. At hearing, the Tribunal discussed the aspects of the relationship with the applicant and credibility issues.

23. The sponsor did not attend the hearing to give evidence because, on the applicant’s evidence, he is currently living and working in [City 2].  The delegate’s decision made it clear that the genuineness of the parties’ relationship was in issue.  The delegate was not satisfied with the evidence in relation to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship or the nature of the parties’ commitment.  Prior to the hearing, the Tribunal had also invited the applicant to provide information to support her claims that she was in a spouse relationship with the sponsor.  The Tribunal was of the view that the applicant had been put on notice of the issues in contention.  The Tribunal told the applicant that it was troubled by the sponsor’s failure to attend the hearing.  By way of response, the applicant told the Tribunal that the sponsor was not aware of the hearing and she had come alone. She said she had not spoken to the sponsor for “a long time”.  She said she could not remember when she last spoke with her sponsor. She also said: “He does all the paperwork, I just follow him.  I don’t know what’s going on”.

24. The Tribunal indicated to the applicant that prior to the hearing, on 7 June 2017, she had been sent a letter inviting her to provide information to support her claims that she was in a genuine spouse relationship with the sponsor.  The applicant told the Tribunal she had received the letter and a friend had read it to her, but she did not know what to write in response. When asked if the sponsor was in [City 1] to be able to help her respond to the Tribunal’s letter, the applicant replied that she was not sure.  The Tribunal asked the applicant to provide an explanation as to why she had not provided any response to the Department’s request for information, despite having had the assistance of a migration agent at that time. The applicant said that she knew she had to write something, but did not know how. 

25. During the hearing, the Tribunal informed the applicant that there were documents (folios 67 to 141) in the Department file ([file number]) which were subject to a s.375A certificate made by the Department which certified their disclosure to be contrary to the public interest.  In this case, the reason why disclosure would be contrary to the public interest was indicated to be that the folios contained Departmental notes identifying case officer details and sensitive information received by the Department from other Government agencies.  One of the documents (Folios 79 to 97) in the file also contained an anonymous allegation report.  The Tribunal discussed the validity of the non-disclosure certificate with the applicant. When invited to do so, the applicant did not make any submission as to the validity of the certificate. 

26. Notwithstanding the s.375A certificate, the Tribunal explained to the applicant that it was obliged, pursuant to s.359AA of the Act to invite her to comment on, or respond to, the gist of the information contained in the allegation report (covered by the certificate), which the Tribunal considered would, subject to her comment or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal advised it had not made up its mind about the information. The Tribunal told the applicant she was entitled to seek additional time to comment on or respond to the information. The Tribunal put to the applicant that information had been received that:

    • her relationship with the sponsor was contrived;
    • she paid the sponsor money for marriage;
    • the parties no longer live together;
    • she remains married to a man in Vietnam – the children’s father – and he did not give his consent for the children to come to AUS.  Rather the applicant provided false documents to enable the children to travel with her; and
    • she is working as [occupation] in AUS.

    The Tribunal indicated to the applicant that this information was relevant to the review because it is not consistent with the applicant’s claims and may lead the Tribunal to doubt her credibility and the reliability of her evidence about the history and nature of her relationship with the sponsor.  The applicant told the Tribunal that the allegations were not true and that she did not know who would provide such information.

27. Following the hearing, in the interests of natural justice, the Tribunal put the abovementioned allegations covered by the s.375A certificate, to the applicant again in writing pursuant to s.359A and invited her to comment on or respond to the information by 12 October 2017.

28. On 9 October 2017, the applicant requested a four week extension of time in which to respond, which request was refused by the Tribunal.  However, it was indicated to the applicant that the Tribunal would consider any information received from her up until the time of the decision. To date, no further information has been received by the Tribunal. 

29. The Tribunal decided that the s.375A certificate was invalid because it does not contain sufficient detail which identifies the basis of public interest immunity. Rather, it merely describes the information covered by the certificate. Notwithstanding that the Tribunal considered the s.375A certificate to be invalid, it ultimately decided not to release the allegation report in full to the applicant because it may have disclosed the identity of a person(s) who had an expectation of anonymity when providing an allegation(s) to the Department.

30. In any event, the Tribunal is unable to test the concerns raised by the anonymous allegation that the marriage was not genuine and that it was entered into for the sole purpose of gaining a migration outcome for the applicant.  Overall, the Tribunal is not prepared to place weight on information it cannot corroborate.  

31. For the sake of completeness, the Tribunal also affords the additional information covered by the s.375A certificate no weight, as the Tribunal considers those documents and/or information are irrelevant to the issues that arise on review.

    The inception and development of the relationship

32. The inception of the parties’ relationship appears somewhat opaque.  The applicant told the Tribunal that her [sister] had got to know the sponsor in Australia and took him to Vietnam to meet the applicant.  She said the sponsor liked her, so they got married.  She said the sponsor could see she was having problems raising her children and so he decided to help her.  She said in general, he treats the children well and they like him.  When asked by the Tribunal about the parties’ engagement and wedding, the applicant said “I really don’t know what to say”.  She said that she married the sponsor in Vietnam, but she could not recall the date they had made that commitment, other than it may have been in 2012.  She said “the neighbourhood” had helped them celebrate and while photos and a video had been taken at the wedding, she did not know where they were.

33. The applicant claims that she first arrived in Australia, with her three children, [in] August 2015 and they lived with the sponsor at the home of her [sister] and her family.  She could not recall the address.  The applicant told the Tribunal that her children were taken into the care of the Department of Child Protection in October 2015.  The Tribunal understood the applicant’s evidence to be that at about the same time her children were taken into care, she and the sponsor moved in to a rented [property] which was closer to the sponsor’s work.  After some time at that address, the applicant indicated that she then moved again to an address in [Suburb 1], which house she thought was owed by her husband.  She said that [a] man also lived at this address.  When the Tribunal asked whether the sponsor resided at [the Suburb 1] address, the applicant said that he did.

34. The applicant told the Tribunal she is currently living in [Suburb 2] in a rented property.  She said she has been at this address for the last few months and is sharing it with a [friend].  She said the tenancy agreement is in the name of her friend.  She said her children had also recently been returned by the Department of Child Protection, so they are also living with her at the moment.  When the Tribunal queried whether the sponsor had spent any time living at the [Suburb 2] address, the applicant hesitantly responded that he had.

35. The Tribunal indicated to the applicant that it was concerned that despite being afforded opportunities by both the Department as well as the Tribunal to provide information, and despite having the assistance of a migration agent during the application process, aside from a marriage certificate, there had been no other evidence whatsoever submitted by the parties in support of the application.  The applicant responded that the sponsor looks after the paperwork and “if you ask me, I don’t know anything”.  The Tribunal notes that the Department wrote its decision refusing the visa [in] February 2017.  The delegate specifically highlighted that there was limited evidence to point to the parties being in a genuine and continuing spousal relationship.  The Tribunal would have expected that the parties would have made an effort to provide evidence that pointed to them living together and socialising together and having a mutual commitment to one another, at least for the last six months, if not before then.  The Tribunal places some adverse weight on the fact that the parties have not been able to demonstrate with information specifically requested by the Tribunal that would assist it to be satisfied that the parties are in a genuine and continuing spousal relationship. 

    Financial aspects

36. There is limited evidence of the financial aspects of the parties’ relationship. 

37. In his statutory declaration dated [in] April 2016, the sponsor makes a scant reference to his financial commitments towards the applicant. He sets out that he is not currently working and supporting the applicant and her children on his Centrelink payments. 

38. At hearing, the applicant’s evidence about the parties’ financial matters was that before the sponsor moved to [City 2], he took care of everything in relation to her and her children.  She said he would also always ensure she had money for her personal use. 

39. The applicant told the Tribunal that the sponsor has not provided her with any financial support since he left for [City 2], but she recently obtained casual [work] to earn some money.  She could not recall the name of her employer, only that they were Vietnamese.  She said she is paid in cash for the two to three days of work she does each week.

40. The applicant told the Tribunal that she has an expired bankcard for an account she holds jointly with the sponsor.  She said the sponsor set up the account when she arrived in Australia, but she had only used it once or twice. When asked what money gets paid into the account, the applicant told the Tribunal that she did not know.  She was unable to provide the Tribunal with any further information about the account. 

41. The applicant said the parties did not own any joint assets.   

42. Overall, the Tribunal places little weight on the evidence regarding the financial aspects of the relationship.

    Nature of the household

43. The evidence to support the claim that the parties have rented homes together as spouses from the applicants’ arrival in Australia is very limited.  The applicant, at hearing, was unable to recollect addresses at which she had lived with the sponsor.  The applicant’s evidence with respect to when she and the sponsor have lived together at their shared addresses was also vague and confusing.

1. The applicant told the Tribunal that she was unable to demonstrate that she had lived with the sponsor since her arrival in Australia.  She said she is illiterate and does not look at documents. 

2. The applicant gave very limited evidence to the Tribunal about aspects of the couples’ daily lives.  She told the Tribunal that she stayed home and cooked.  She said that the sponsor took responsibility for everything else, including in relation to the children. 

3. The Tribunal considered the fact that it appears the applicant and sponsor have lived in different states, without maintaining any contact whatsoever, for some time.  This arrangement does not persuade the Tribunal that the parties are living as spouses and leaves open doubts about whether the parties might be living separately and apart on a permanent basis.

4. Overall, the Tribunal places little weight on the evidence regarding the nature of the household.

   Social aspects of the relationship

5. There is little evidence before the Tribunal as to the whether the parties represent themselves to other people as being married to each other.

6. The Tribunal pointed out to the applicant that no evidence had been provided by their family or friends which showed that they were aware of the parties’ relationship. The applicant said she does not have any friends in Australia.  She claimed that she and the sponsor did not engage in social activities with family or friends. 

7. When asked what sorts of things the parties do together in their spare time, the applicant told the Tribunal “nothing”; that she just stays home and does her home duties. After some prompting by the Tribunal, the applicant did recall that the sponsor took her to celebrate the birthday of one of his friends on one occasion.  However, she was unable to provide any further detail in relation to that outing.

8. The Tribunal noted that there were no photographs of the applicant and sponsor provided in support of their application or during the review process.  The applicant repeated that there were photographs and a video taken at their wedding, but she did not know where they were now.

9. The Tribunal places little weight on the limited evidence provided in relation to the social aspects of the parties’ relationship.  The Tribunal considers that the muted support for their relationship by family members and friends raises concerns for the Tribunal that the relationship may have been entered into for the sole purpose of the applicants gaining a migration outcome.

   The nature of the persons’ commitment to each other

10. The Tribunal considered the evidence in relation to the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long term.

11. The Tribunal was concerned about the limited evidence with respect to the nature of the parties’ commitment to each other.

12. Although the applicant claims to have married the sponsor in Vietnam about 5 years ago, her oral evidence about the time they have lived together was vague, except to say that the sponsor has not lived with the applicant for “a long time”. 

13. In response to the Tribunal asking about the parties’ plans for the future, the applicant said “I don’t know what to plan.  Whatever he plans, I follow”.  She said that the sponsor had told her before he left for [City 2] that when the children were returned to her and he had a job, he would return for them. 

14. The Tribunal informed the applicant and now records that the sponsor’s failure to attend the hearing and the fact that she and the sponsor had not spoken for a “long time” cast doubt on the nature of the parties’ commitment.   When asked about the sponsor’s failure to attend the hearing, the applicant said that she had tried to contact the sponsor, but she could not get hold of him. She said that she did not know what was happening. She said that the sponsor “looks after the papers” and she does not “know anything”.  As set out previously in this decision, the Tribunal’s view is that a committed partner would have made himself available to give evidence at the hearing to, at the very least, respond to the concerns set out in the delegate’s decision. 

15. From the evidence submitted, the Tribunal has had difficulty gauging the degree, if any, of the companionship and emotional support the parties draw from one another.

    Conclusion

16. After having considered all the evidence the Tribunal is not satisfied that the parties have a mutual commitment to a shared life to the exclusion of others.  Although the parties are married to each other under a marriage that is valid for the purposes of the Act, the evidence does not support that their relationship is genuine and continuing.  The Tribunal is also not satisfied that the parties live together or do not live separately and apart on a permanent basis.  The Tribunal is not satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship.

17. Therefore the applicant does not meet cl.820.211(2)(a).

18. There is nothing before the Tribunal to indicate that the applicant meets any of the alternative provisions in cl.820.211.

19. There is nothing before the Tribunal to indicate that the applicant meets any of the exception provisions in cl.820.221(2) and (3).

20. The Tribunal finds that the applicant does not meet cl.820.211 and cl.820.221.

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

22. As the applicant does not satisfy the criteria for the grant of the visa, the decision to refuse the visas for the secondary applicants must also be affirmed.

    DECISION

23. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

    Nicola Findson
    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).