1728977 (Migration)

[2020] AATA 2073

1728977 (Migration) [2020] AATA 2073 (6 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728977

MEMBER:Michael Cooke

DATE:6 March 2020

PLACE OF DECISION:  Sydney:

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

Statement made on 06 March 2020 at 2:42pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Federal Circuit Court remittal – relationship ceased with sponsor – false statement – had a child with flat mate – mistruths about the parentage of child – bogus document – the social relationship between the parties was not a spousal one – proven poor credibility – relationship never existed – child exception – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359A, 375A,
Migration Regulations 1994 (Cth), rr 1.03, 1.15A; Schedule 2, cl 801.221; Schedule 4, Public Interest Criterion 4020

CASES
He v MIBP [2017] FCAFC 206

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 21 April 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 16 January 2012 on the basis of her relationship with her 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the applicant was not in a genuine and continuing relationship with her sponsor prior to the relationship ceasing.

4. The matter is before the Tribunal following a Court Order. The Court issued a writ of certiorari quashing the previous decision along with a writ of mandamus requiring the Tribunal to determine the application according to the law.

5. The applicant appeared previously at the Tribunal (separately constituted) on 28 and 29 March 2017 (AAT1606749).

6. The applicant appeared again before the Tribunal on 7 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. The applicant was represented in relation to the review by her registered migration agent who attended the hearing.

8. Prior to the hearing the representative submitted 8 Statutory declarations regarding the case (T1, ff.43-52).

9. The Tribunal also issued a s.359A Invitation as follows:

   INVITATION TO COMMENT ON OR RESPOND TO INFORMATION AND TO PROVIDE INFORMATION – [applicant name]

   In conducting the review, we are required by the Migration Act 1958 (the Act) to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Invitation to Comment

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·As outlined in the Tribunal hearing, the Department file contains documents covered by a non-disclosure certificate under s.375A of the Act (a copy of the certificate is attached).

   This information is relevant to the review because the information contained in the relevant folios concerns the citizenship of [Child A].

   The Tribunal does not intend to rely on the information contained in the documents covered by the non-disclosure certificate in finalising the decision under review.

   You are invited to give comments on or respond to the above information in writing.

   Invitation to provide information

   You are also invited to provide the following information in writing:

   ·Please see the attached s.375A Certificate (as outlined in the hearing) and comment on the validity or otherwise of the certificate.

   ·You are also invited to provide a further submission on any issues in the case you wish to further elaborate

10. The Tribunal is satisfied that the s.375A Certificate is valid.

11. The applicant responded by way of Statutory Declaration as follows:

    STATUTORY DECLARATION

    I, [applicant name] of [address] make the following declaration under the Statutory Declaration Act 1959:

    I was born on [date] in Vietnam.

    I am the Review Applicant before the Administrative Appeals Tribunal ("AAT"), Case Number: 1728977.

    I received a letter from the AAT dated 29 August 2019, inviting me respond to comment or respond to:

    "As outlined in the Tribunal Hearing, the Department file contains documents covered by a non-disclosure certificate under s375A of the Act"

    This information is relevant to the review because the information contained in the relevant folios concerns the citizenship of [Child A].

    The Tribunal does not intend to rely on the information contained in the documents covered by the non-disclosure certificate in finalising the decision under review.

    You are invited to give comments on or respond to the above information in writing"

    I do not know the content of the documents covered by the non-disclosure certificate under s375of the Act but as the Tribunal does not intend to rely on the information for the purpose of my review, I do not wish to comment further.

    I wish to provide further information to assist the Tribunal in my review application. My relationship with [Mr B]

    [Mr B] and I worked together for a [company] in Vietnam. [Mr B] and I were chosen to visit Australia to attend a [program] organise by [a named Australian company].

    [Mr B] and I travelled together in 2005 and arrived in Melbourne. We stayed in Melbourne for about 2 days to attend the program [and] we travelled to Queensland.

    In Queensland, [Mr B] and I decided to stay in Australia. Our friends suggested that we should open a Bank account to depoSit our money and we agreed. [Mr B] and I decided to open a joint bank account. We both have our own card for this joint bank account but I did not use it as I did not deposit any money into this joint bank account.

    [Mr B] and I did not live together as I live with my friends and he lived with his friends. In 2008 I travelled to Sydney, in Sydney I then met my ex-husband [Mr C].

    [Mr C] and I started our relationship and married [in] October 2009. Our marriage can be described as follows:

    Household aspects

    When we got married we first lived at [an address in Suburb 1] and moved to [another address in Suburb 1] where we rented a two bedrooms granny flat.

    [Mr C] and I lived together in the two bedrooms granny flat with an overseas student. In early 2011, I saw [Mr B] again in [Suburb 1] and he said that he recently arrived in New South Wales as he believes that there were better job opportunities. [Mr B] was seeking temporary accommodation at the time. My husband and I felt sorry for [Mr B] as my husband was aware that [Mr B] and I were former colleagues and was willing to help him out.

    My husband and I allowed [Mr B] to stay at our place and he sleep in the lounge room.

    When my husband and I were married I did most of the cooking, cleaning and washing. My husband helps out with the heavy household chores and the handy man work around the house. My husband also hangs out the clothes to dry when he was free.

    We ate together and tidy up the place.

    Financial aspects

    My husband, [Mr C], is the breadwinner of the family. [Mr C] works full time and gives me cash to buy groceries he also deposit money into our joint bank account in case I need to access the funds. My husband pays for all our utility bills and I mainly stay home to care for [Child A].

    [Mr C] manages our finances.

    Social aspects

    When we lived together our families and friends were aware of our marriage. [Mr C] had travelled to Vietnam and visited my family after our marriage to introduce himself.

    Our landlord and friends were aware of our marriage as they saw that we lived together. I had provided my landlord's statements as well as friends in support of our marriage.

    When [Mr C] and I were free we visit friends and also invite friends over to socialise.

    Commitment

    [Mr C] and I married each other [in] October 2009 until we separated in 2014 which is more than 4 years. When we signed our marriage certificate we were committed to having a long term marriage with each other.

    Our marriage broke down because of my mistake in which I slept with [Mr B] on one occasion and became pregnant with his child. However, [Mr B] and I did not have a relationship as husband and wife.

    I believe that [Mr B] had kept some of my belongings and other people's belongings such as bank cards etc... I and my friends did not give permission for [Mr B] to hold them and we did not know why he held them in his wallet.

    When [Mr C] learnt that [Child A] was not his biological son he was upset and decided to end our marriage.

    However, [Mr C] still cares for [Child A] by contacting [Child A]  by phone and seeing him whenever he was free.

    [Child A] is studying [a specified grade] and is doing well at school. [Child A] has never travelled outside Australia and his Vietnamese is limited.

    I state that my marriage to [Mr C] was genuine until we separated.

    This Statutory Declaration was prepared through questions and answers in Vietnamese. It was then typed up in English and read back to me in Vietnamese. I understand it contents and state that it is true to the best of my knowledge.

    I understand that a person who intentionally makes a false statement in statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statement in this declaration is true in every particular reasons.

12. The Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant satisfies the requirements of cl.801.221(6) of Schedule 2 to the Migration Regulations. The circumstances are that she has claimed to the Tribunal that this was the specific criterion that she sought to meet and she has presented evidence to support her claim to meet that criterion to both the present and separately constituted Tribunals.

14. The Tribunal became aware of information on the Departmental file that was the subject of a s.375A Certificate. The Tribunal issued the Certificate to the applicant and gave her an opportunity to comment - having found it was valid. The ‘gist’ of the documents is Departmental correspondence concerning discussion between members of the Department’s Citizenship section regarding the legality or otherwise of the citizenship of [Child A].  The public interest reason specified on the Certificate was that the folios contained:

    ‘internal departmental communications revealing investigative methods, disclosure of which may prejudice similar investigations of a potential breach of the law’.

15. The Tribunal observes (when considering the Certificate) that [Child A] is not an applicant for a visa. He is not a subject of this review either due to the fact he already has Australian citizenship. The issue in the review is whether the applicant meets s.5F of the Act. The Tribunal finds that the Departmental information concerning a discussion about whether or not [Child A] is correctly an Australian citizen is, therefore, not relevant to the conduct of this review. Furthermore, the Tribunal puts no reliance on the information (contained in the documents covered by the non-disclosure Certificate) in finalising the decision under review.

    The Hearing

16. The Tribunal explained to the applicant that she needed to meet the Migration Regulations if she wanted to win her case. The Tribunal read out the definition of spouse relationship. The Tribunal explored the applicant’s ability to meet the definition and clarified details of her relationship with her former sponsor and her “flatmate” ([Mr B]) with whom she had the child - known as [Child A]. The applicant insisted that she and her husband lived in a two bedroom flat and shared with a student. [Mr B] lived on a mattress in the living room as he had nowhere to go.

17. The Tribunal pointed out that she had become involved with him sexually. She agreed and that the product of the relationship was [Child A]. The Tribunal alerted her that the relationship impacted on her ability to meet the definition of spouse. She had told the Department mistruths about the parentage of [Child A]. The Department found out about the relationship she was involved in through a most unusual way as recounted in the decision record.

18. [Mr B] was an unlawful non-citizen and working [at] a [workplace]. He became the subject of a Departmental Compliance raid. When he was interviewed he was found to have a number of different cards in his possession. These included a [Bank 1] Bankcard that had the applicant as a joint account holder. He also had the applicant’s Medicare card as well as a [Bank 2] Bankcard with her name on it. There was also [a Bank 3] bankcard under another name and a [card] under the name ‘[Mr C]’ - who was the applicant’s former husband and sponsor. The officers took [Mr B] back to the [Suburb 1] residence of the applicant where he had been living. The applicant was there at home with [Child A].

19. [Mr B] pointed to where he slept. There was no mattress there to indicate same. All his belongings were in the applicant’s bedroom. [Mr C] (the applicant’s original sponsor) was at work. [Mr B]’s passport was found in her personal drawer and her passport was located with [Mr B]’s belongings in a suitcase. He also had a photo of [Child A] as the background picture on his iPhone. When asked whether it was his child, he at first denied he was so to the officers. He then confessed it was his son. He had been in a relationship with the applicant he informed. The officers then confronted the applicant about the parentage of [Child A]. The applicant insisted it was Mr [C]’s child and Mr [C]’s name was on the birth certificate. [Mr B] then recanted the admission that he was the father.

20. Another Vietnamese couple arrived on the scene including the applicant’s brother - who had come to visit. He denied to the officers he was the applicant’s biological brother and insisted he just called her ‘sister’ for cultural reasons. The person present was Mr [D] which (coincidentally) was the name on the [Bank 3] Bank card found by the officers when they detained [Mr B]. The other person was Ms [E].  The officers asked Mr [D] if he knew [Mr B]. Initially he said ‘No’ and that he did not know him.  He (Mr [D]) then changed his story. He said he saw him at the [Suburb 1] shops. When asked why he was holding his bankcard Mr [D] said he had no idea why [Mr B] held his bankcard.

21. The Department then asked the former sponsor (Mr [C]) and [Child A] to undertake a DNA test. The applicant then claimed the relationship was over. They had separated in early May 2015. Mr [C] was not the biological father - [Mr B] was. She had a short term casual affair with [Mr B]. It was sexual in nature and not a proper relationship. The applicant encouraged the Department in her response not to confuse the two types of relationship.

22. The Tribunal pointed out to her that the problem was [Mr B] had already admitted to the Department (see decision record submitted by applicant and found on the Tribunal file) that he had a two year relationship with the applicant. The Tribunal informed her that a two year relationship would be considered to be a ‘long-standing relationship’ in migration parlance.  Furthermore, everyone had admitted [Child A] was his child with the applicant.

23. The Tribunal informed the applicant that despite having the Parenting Order which Mr [C] had secured (that allowed him contact with [Child A]) there had to be a genuine spouse relationship in the first place and which had ceased in order to meet the child exception. There was considerable evidence which indicated she did not meet the definition of spouse - particularly as her relationship was not exclusive and her relationship with [Mr B] appeared spouse-like. The applicant responded that she had only had one casual sexual relationship with [Mr B]. The Tribunal alerted her that the evidence suggested she, in fact, had a spouse-like relationship with [Mr B] - certainly according to [Mr B]. He was found in possession of information and objects that suggested that he was in a spousal relationship with her pursuant to reg.1.15A(3).

24. The applicant said the bank cards expired so she threw them away.  [Mr B] kept them and [Child A] was playing with them. The bankcard with the joint names came from the time when they travelled together to Australia and set up the joint account. They worked together in Brisbane. She then moved to Sydney and met Mr [C]. She did not know where [Mr B] had gone. She said she had not returned to Vietnam since her arrival in Australia.

25. The Tribunal alerted the applicant to the need to always tell the truth to the Department. Not telling the truth could lead to having a credibility problem. A person who is a reliable witness is someone who could be believed and that person does not continually change her story. The Department did not believe her when she claimed it was a casual sexual relationship because she had changed her story so many times. Poor credibility and giving untrustworthy evidence led inexorably to the delegate’s visa refusal.

26. The applicant said she came to the hearing to tell the truth. The Tribunal said it recognized she loved [Child A] - as did possibly Mr. [C]. It was possible that was why he wanted to still be a part of [Child A]’s life through custody rights. He invested in [Child A] and did not want to walk away. He wanted to be a father to him. It was possible that he forgave the applicant and was not prepared to let her infidelity ruin his relationship with [Child A]. He went off to the Court to get an Order protecting his fatherly interest. The Court agreed to give it to him.

27. [Child A] is [age] years old the applicant informed the Tribunal. He remains an Australian citizen according to his birth certificate. However, the Tribunal informed her that it was apparent that his father was not an Australian citizen, permanent resident or eligible New Zealand citizen. Therefore, [Child A] had a problem as the birth certificate details entered were not genuine regarding his true father. It could be that he might not be entitled to citizenship for those reasons. The Tribunal asked her who had registered her son for the purposes of citizenship. She replied that Mr [C] did. She did not think [Mr B] was the father at the time of birth as [Child A] was the product of only one sexual incident.

28. The Tribunal then alerted the applicant’s representative that she could be liable to a further finding that she had breached PIC 4020 because she had submitted a bogus document - being the Birth Certificate of [Child A] to the Department.

29. The Tribunal asked the applicant whether she was already [pregnant] with [Child A] when she applied for the visa. She said she was. She met Mr [C] in 2008 and she had arrived in Australia in 2005 with [Mr B].

30. The Tribunal asked the applicant whether she had a better understanding of her situation and the reason why her visa was not granted. She indicated she did. There was a considerable amount of evidence which suggested she was not in a genuine spouse relationship after the investigation into [Mr B]. It appeared her spouse relationship with Mr [C] was not genuine.

31. The applicant replied that that her relationship with Mr [C] was genuine as she did not know where Mr [Mr B] was after she left Brisbane. They met in 2008 and got married in 2009. They lived together in [Suburb 1] and in 2011 they met [Mr B] at the [Suburb 1] shops - casually. He had nowhere to live so her husband allowed him to live in the living room.

1. The Tribunal asked her why she was aiding and abetting an unlawful non-citizen to stay in Australia. She said that at the time he had nowhere to live because he had just moved to Sydney and did not know anyone. The Tribunal put to her that she was ostensibly a happily married woman yet was allowing [Mr B] to sleep on the floor. She replied that at the time her husband went to work and was coming home late. They argued often and [Mr B] consoled her and they talked a lot and that later led to having sex.

2. The Tribunal asked her why she had unprotected sex with a lodger who was sleeping on her floor when she was (at that time) in the process of applying for a Partner visa. The applicant responded that at that time she was upset and with the lubrication of alcohol she got carried away. She thought one sexual incident would not be too dangerous. She said after this she felt sorry for her husband because her relationship with him was genuine.

3. The Tribunal said she had never told the honest truth and had told lies about the parentage of [Child A]. She said in reply that she thought Mr [C] was the father. The Tribunal said that [Mr B] did not suffer with that delusion. He had a picture of [Child A] on his iPhone screen as a background. This suggested he well knew about [Child A]’s parentage because she had obviously told him. She said, in explanation of this fact, that [Mr B] had merely taken a photo of [Child A].

4. The Tribunal pointed out to the applicant that she had told so many untruths it was difficult to believe her. An example was found in the bankcards story. The applicant demurred that the bankcards were left for her child to play with and she did not know [Mr B] took them. The Tribunal said the point was that one card was a joint account. She said, in response, that they opened the joint account when they came to Australia to avoid bank fees.

5. The Tribunal invited the representative to make some remarks. He pointed to witness statements furnished by friends of the parties. He pointed out that she had told the Department that [Mr B] had kept the cards and she did not know why. His clothes were put there because he had nowhere to put his belongings. He, therefore, asked her husband to allow him to use their facilities - which he did.

6. The Tribunal referred to the presence of the s.375A Certificate at folio 298 of the Department file. It observed it was correctly signed off in 2016 by the named delegate. The Tribunal alerted the applicant to the Certificate and its purpose and what it said. The Tribunal read out the words on the Certificate. It informed her that it found the Certificate to be valid. The representative asked the Tribunal to allow it further time to comment, in particular. on the suggestion that the relationship between [Mr B] and the applicant had been two years long. The Tribunal then explained that it would issue a letter to the applicant’s representative for her to comment. There were also other issues present which had been disclosed earlier regarding the birth certificate.

7. The representative then continued to refer to the relationship between [Mr B] and the applicant and her husband. The suggestion was that the parties were having marital problems. It was in a moment of despondency and whilst lubricated with alcohol that she had sex with [Mr B] resulting in the birth of [Child A]. She didn’t want to ruin her relationship with her husband and regretted it. She was confused and decided to keep quiet about the matter. It was a one-off occasion. She did not think she would get pregnant. Furthermore, as a result of the Contact Order her ex-husband wanted to have a continuing relationship with [Child A]. [Mr B] returned to Vietnam and she had not seen him again.

8. The applicant said Mr [C] sometimes did not spend the night at home and that they had problems. When he saw the DNA letter he was very upset and angry over it. She told him he was not the father. She had not told him previously about the sexual incident. He did not know until he got the DNA letter. He told her he did not want to live with her anymore. She informed that she had not told him because she did not want a family breakdown. [Child A] did not look like Mr [C] as he got older. He left home as he was upset. However, he still loved [Child A]. This happened when [Child A] was [age] years old.

9. The Tribunal asked if Mr [C] visited the child. She said [Child A] called him all the time. He visited from time to time and called around. He got remarried and she did not know if he had children. He called Mr [C] ‘father’. The Tribunal asked her whether [Child A] asked questions about his father. She said he did and she told him he was away busy working far from home.

10. The representative referred to the fact she had been married for a significant time before the matter concerning [Child A] happened. The applicant agreed. The Tribunal advised the applicant that a relationship had to be ‘exclusive’. This meant that there could only be two people in the relationship and not more as appeared to be the case in her life. The idea is also that the relationship with her sponsor is a continuous relationship. She had claimed her relationship was spontaneous with [Mr B] in her despondent state. She lent on him. Then she had the sexual moment under the influence of alcohol. It was a ‘one off’ situation. Subsequently [Mr B] had returned to Vietnam, her son was raised in Australia and she wanted to remain here.

11. The Tribunal commented that (when assessing the matter of exclusivity for the purposes of grant of a visa) that a random sexual relationship might not indicate that the spousal relationship had completely demised. There was some account taken for random acts that disrupt the relationship but otherwise the relationship was genuine and continuing especially when looked at over a long-term time frame. The Tribunal had to ascertain whether the applicant was having just a random sexual encounter with [Mr B] or a proper spouse-like relationship. [Mr B] had indicated a spouse-like relationship when he spoke to the Department.

12. The applicant said it happened only once. She felt regret for her former husband. She was not aware of what [Mr B] said. She did not know what he said. She was only involved once with him and she regretted it.

13. The Tribunal then spoke to the representative and applicant informing them it would write to him regarding the s.375A Certificate and invite him to make a further submission on the case.

14. The applicant in her final statement said she would like to say that the relationship was true and genuine so please grant her the visa so she could look after her son and live in Australia.

    SPOUSE/DEFACTO (cl.801.221(2))

    Whether the parties are in a spouse or de facto relationship

15. 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 claimed in the past to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

16. ‘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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, the parties were married to each other under a marriage that was valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spouse relationship met?

    Findings and reasons about each matter in r.1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.15A(2),

    ·Financial aspects of the relationship - including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day Tribunal household expenses.

18. The applicant previously gave evidence to the (separately constituted) Tribunal regarding the financial aspects of the relationship as follows:

19. The applicant told the Tribunal (separately constituted) she and the sponsor had lived together for 5 years. During that time they shared their financial resources. She said that they opened a joint bank account at [a] Bank. She said the sponsor also had [another] bank account in his name alone. The applicant said that she did not work after her marriage to the sponsor. She had no savings at the time of the marriage. She said that although they opened up a joint account after their marriage the sponsor did not give her access to the account and she was not able to operate it. She said that when they needed groceries they would go to do the shopping together and he would pay for the shopping. He would sometimes give her [cash] for her own use.

20. The Tribunal (separately constituted) asked her how the accounts were used. She said that the sponsor had his salary paid into his own account and he would then transfer the money into their joint account. She did not know why he did this and he did not have his salary paid into the joint account directly. The Tribunal (separately constituted) put to her that the bank statements from the sponsor's bank account for the period 11 November 2011 to 9 January 2012 showed the sponsor's salary as paid into the account but did not show the money being transferred to a joint [Bank] account. She offered no comment on this. The Tribunal finds this to be a significant contradiction when considering the pooling of financial resources.

21. The Tribunal (separately constituted) put to the applicant that the bank account showed regular withdrawals [and] asked her what that was for. She did not know what the transfer was for - she replied. The Tribunal finds this lack of knowledge to be a significant when considering whether there were joint liabilities between the parties.

22. The Tribunal noted that in the applicant's statutory declaration, dated 6 January 2014, she stated that they had a joint [Bank] account. The sponsor also stated this in his statutory declaration dated 11 November 2013. The Tribunal (separately constituted) noted there was no documentary evidence before it that the applicant had a joint bank account with the sponsor. Yet when the Departmental officers discovered [Mr B] they also discovered bankcards among which was a joint account with the applicant. She has claimed subsequently that they opened this account when they both arrived in Australia and were both living in Brisbane.

23. The applicant told the Tribunal (separately constituted) that after they were married, her ex-husband did not want her to work. He worked long hours [and] she did the housework and the cooking. His daughters (from his previous marriage) spent time with them on [specified days] although they did not stay overnight. She was expected to cook for the family unless they went out for a meal. Before her marriage she had worked on [farms] in Queensland and after moving to Sydney had worked in [shops].

24. At time of decision the parties are permanently separated. Witnesses known to the sponsor and applicant have stated in Statutory Declarations forwarded to the Tribunal that they saw the sponsor giving money to the applicant to buy groceries and to pay their everyday expenses. This evidence seeks to confirm her earlier claim to the Tribunal (separately constituted). The applicant in her declaration has claimed recently that

    He also deposit money into our joint bank account in case I need to access the funds. My husband pays for all our utility bills and I mainly stay home to care for [Child A]. [Mr C] manages our finances.

25. The Tribunal so far has received no evidence of this other than her say-so. This information contradicts the finding of the Tribunal (separately constituted) that:

    there was no documentary evidence before it that the applicant had a joint bank account with the sponsor.

26. The fact that the father of her child ([Mr B]) was found by Department officers with a joint account [Bank 1] bankcard (which included the applicant) is concerning to the Tribunal. [Mr B] also had a [Bank 2] bankcard under the name of the applicant and [a Bank 3] bankcard under the name of the applicant’s “brother” Mr [D] along with the applicant’s Medicare card.

27. When the financial relationship of the parties is presented cumulatively so as to indicate a genuine spousal financial relationship it is worth noting that there is no evidence of joint ownership of assets between the parties or of any joint liabilities. There is also no actual evidence of the extent of pooling of financial resources or of any legal obligations owed to the other party. Any sharing of day-to-day Tribunal household expenses is based on claims made by the applicant and her friends. These claims must be juxtaposed with the finding that she was in a partner-like relationship with her lodger from at least January 2011. Importantly he produced evidence of financial pooling with her to the Department compliance officers.

28. The Tribunal finds that on the cumulative evidence the financial relationship between the parties was not a spousal one.

    ·Nature of the household - including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

29. The applicant and the sponsor both made written statements to the Department in support of the visa application and in regards to the requirements of Reg.1.15A(3). For instance, they each stated that they lived together and that the applicant takes care of her son [Child A]. Her ex-husband did the mowing and some mopping. She said that when they first moved in she and her husband lived there alone. An overseas student [moved] in to live with them some time later and [Mr B] moved in in January 2011. She said he had lived with them for about 2 years.

30. The applicant said that in the household she was responsible for the cleaning and cooking. She recently deposed that:

    When my husband and I were married I did most of the cooking, cleaning and washing. My husband helps out with the heavy household chores and the handy man work around the house. My husband also hangs out the clothes to dry when he was free.

31. The Tribunal (separately constituted) was informed that there was no written lease for the accommodation. They had found the advertisement for the property in the local newspaper. The applicant said the rent was $[amount] per week which her husband paid. All the utilities were in the sponsor's name. She said that she did the cooking for herself and her husband only. The other people in the house cooked for themselves.

32. However, the Tribunal (separately constituted) discovered that the only evidence regarding proof that the parties lived at the residence was a copy of a card addressed to the couple in joint names and the statement of the landlord.

33. The presently constituted Tribunal (1728977) has received (in response to Invitation) various witness statements from friends of the applicant seeking to support the notion that the parties conducted a normal spousal household until their marital separation. The statements included one from the applicant’s landlord. They all follow a similar general narrative. The witnesses have deposed to the Tribunal that they had seen the sponsor and applicant living a normal life before their separation. They had seen this on visits to the family home where they also saw [Child A]. They saw both parties caring for [Child A] as a baby including after their separation and earlier sharing household chores with the sponsor also assisting the applicant with shopping in [Suburb 1].  They observed the sponsor post-separation visiting [Child A] and playing with him. One claimed to be aware of the Parenting Order but “had learnt that [Mr C] would contact [Child A] to make sure he is okay”. One witness [claimed] that he had taken [Child A] swimming to treat a skin condition with salt water. His wife knew [Child A] and was a childcare worker who ‘cared’ for [Child A]. He claimed he often saw the applicant and her sponsor together prior to their separation. The Tribunal notes these declarations but gives these recent claims minimal weight when weighed with the adverse evidence gathered by the Department officers on the ‘home visit’ to the applicant’s flat as well other evidence gathered by separately constituted Tribunal members during previous reviews.

34. The applicant recently stated to the Tribunal in response to Invitation that:

    [Mr C] and I lived together in the two bedrooms granny flat with an overseas student. In early 2011, I saw [Mr B] again in [Suburb 1] and he said that he recently arrived in New South Wales as he believes that there were better job opportunities. [Mr B] was seeking temporary accommodation at the time. My husband and I felt sorry for [Mr B] as my husband was aware that [Mr B] and I were former colleagues and was willing to help him out.

    My husband and I allowed [Mr B] to stay at our place and he sleep in the lounge room.

    When my husband and I were married I did most of the cooking, cleaning and washing. My husband helps out with the heavy household chores and the handy man work around the house. My husband also hangs out the clothes to dry when he was free.

    We ate together and tidy up the place.

35. The Tribunal has examined the cumulative evidence (especially that gathered during the Departmental ‘home visit’) regarding the nature of the household between the parties. The Tribunal finds it particularly germane that the flat contained only two rooms yet there was no evidence that the applicant slept on the floor – such as a spare mattress. The applicant has made out that the father of her child was living at their residence purely as a lodger. He stayed there (it was maintained) due to an act of kindness on the part of the parties towards the applicant’s friend ([Mr B]). She had arrived in Brisbane Australia many years previously with this person from Vietnam. This person was actually an unlawful non-citizen at the time according to the Department. In contradiction of the applicant’s claim that he was only a lodger and friend is the evidence which [Mr B] told the Department officers himself (see decision record on Tribunal file). Following his detention caused by a Departmental Compliance visit to a [workplace] in [NSW] ([April] 2013) he made some statements to the interviewing officers which the Tribunal finds are important to the resolution of this review and to which it gives significant weight.

36. The most interesting one was that he had been in a relationship for two years with the applicant - as at his Compliance apprehension - in April 2013. Hence the relationship between the applicant and [Mr B] began on or about April 2011. The applicant gave evidence to the Tribunal (separately constituted) that [Mr B] came to live on the premises as early as January 2011. The application for the visa the subject of this review was made on 16 January 2012.

1. Information gathered at the residence by the officers on the site visit provided further confirmation of the claim made by [Mr B]. For instance, there was extensive evidence of co-mingling of crucial documentation and personal effects between [Mr B] and the applicant. There was no proof found that [Mr B] had been sleeping on the living room floor – as claimed by the applicant. The flat contained two rooms according to the applicant’s statement to the presently constituted Tribunal. There was also the picture of [Child A] which [Mr B] had uploaded on his iPhone screen indicating his obvious closeness to [Child A] as a parent.

2. His residence was discovered after a routine discovery by the Department following a site visit to his workplace - where he was working unlawfully. However, suffice to say the evidence is plain that the applicant was pregnant to [Mr B] prior to the application for the visa (the subject of this review). Further evidence of the presence of a household between the applicant and [Mr B] (rather than her sponsor) was the co-mingled personal effects and documents and a background photograph of [Child A] on [Mr B]’s iPhone. [Mr B] in rebuttal of the perception of parentage that the photo presented claimed in demurral that he liked the child and uploaded the photo of [Child A] for that simple reason. The Tribunal rejects the explanation of [Child A]’s mother that this was his motivation when it is balanced against the overall weight of the evidence pointing to [Child A]’s real parentage. It gives this information maximum negative weight due to its discovery by officers of the Department after a ‘home visit’.

3. The Tribunal finds, on balance, little evidence of a spousal household between the applicant and her sponsor at the [Suburb 1] residence from at least 2011. The Tribunal (separately constituted) discovered that the only evidence regarding proof that the parties lived at the residence was a copy of a card addressed to the couple in joint names and the statement of the landlord.

4. The Tribunal is satisfied that the applicant ostensibly lived at the premises with her former sponsor. In reality she was living in a partner-like relationship with her lodger ([Mr B]) - and for some considerable time prior to her visa application. This finding is made despite the minimal evidence of her tenancy. Furthermore, the Tribunal gives this minimal weight in view of the evidence gathered by the Department officers and the applicant’s poor credibility. The Tribunal is unaware how long exactly [Mr B] had been ‘lodging’ at the flat in [Suburb 1] but on her evidence it was from at least January 2011. She claimed [Mr B] came to live there with her the sponsor and the [student].

5. The Tribunal finds that logically (when taken with the other indicia of a relationship) the photograph of [Child A] on [Mr B]’s iPhone indicates an active joint responsibility for the care and support of [Child A] existed over the years between the applicant and [Mr B] rather than the sponsor – his ostensible father - according to his birth certificate. The applicant claimed to have been a ‘stay at home’ mother and performed housework at the premises. The evidence this housework was shared with the sponsor is her say-so or her friends’ statements.

6. The Tribunal finds that, when the evidence of the Department’s ‘home visit’ and her and [Mr B]’s interviews are taken into account, the nature of the household indicates it was not a spousal one. This is particularly so when the extent of the evidence of the living arrangements between the lodger ([Mr B]) and the applicant is examined.

   ·Social aspects of the relationship - including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

7. The applicant told to the Tribunal (separately constituted) that she and her husband did not go out socially very much. They occasionally went to school parties. They had not even been invited to a wedding during the time they lived together. The Tribunal gives this claim significant negative weight when examining the social aspects of the relationship particularly ‘any basis on which the persons plan and undertake joint social activities’. It reinforces the scant evidence that ‘they represent themselves to other people as being married to each other’. The Tribunal finds that such evidence must also be weighed with the expert evidence gathered through the Department ‘home visit’ and Tribunal oral evidence.

8. On the Department file are found a number of Form 888s (Statutory Declarations). These forms were presented to the Tribunal (separately constituted) as evidence of the parties’ social relationship. One of these forms is from Ms [E]. She stated she is a family friend and has known the applicant since they were in Vietnam. They have become close friends in Australia. She was introduced to the sponsor through her husband - as they worked together. She stated she sees them on a weekly basis and on weekends they would go out to eat and socialise. She attested to the relationship being genuine. Another of these forms was from [a named person] who stated she is a family friend. She attested to the relationship being genuine.

9. As to the opinion of friends and acquaintances about the nature of the relationship the Tribunal (separately constituted) observed that there was no other correspondence addressed to the parties, together or individually, at the address. The applicant in response admitted that they said they seldom went out socially. There had been no invitations to them together during the time they were living together. The applicant said that after the birth of her son, [Child A], she stayed home to care for him and look after the house and the sponsor went to work.

10. There were two further Form 888s presented as evidence of social aspects of the relationship. One was from [Mr D] who attested to the relationship being genuine and continuing but gave no reasons for this belief. The other is from [Ms E] who attested to the relationship as being genuine and continuing and stated they are married and have one boy but gives no reason for her belief that the relationship is genuine. The Tribunal notes the child referred to is the applicant's son who (it has been further established) is not the son of the sponsor.

11. The applicant told the Tribunal (separately constituted) that on their wedding day there was a small wedding party of 6 guests. The migration representative presented several wedding photos depicting the couple with their guests. The Tribunal gives this information some positive weight when considering whether the parties represent themselves to other people as being married to each other.

12. The Tribunal asked the applicant whether the sponsor's two young children from his previous marriage had attended the wedding. She said that they had not attended the wedding as they were at another party with his ex-wife. She said the ex-wife had not wanted them to come to the wedding. The Tribunal gives this consideration neutral weight as it would be reasonable for an ex-wife to be uncomfortable involving her young children in a wedding ceremony to be performed with the sponsor’s new wife. In particular, as she would not be able to chaperone them personally to avoid any potential familial embarrassment.

13. The applicant informed that she considered she had a good relationship with the children and they spent time with her and the sponsor on Thursdays and Fridays. The Tribunal finds that there is no evidence to support this latter claim on file. Furthermore, when this claim (that she had a good relationship with her sponsor’s children) is weighed with the applicant’s proven poor credibility and other evidence of her relationship with [Mr B] - the Tribunal gives this claim negative weight when considering whether the parties represent themselves to other people as being married to each other.

14. The applicant told the Tribunal (separately constituted) she did not have any photographs of the sponsor and herself and any of the friends. She also did not have any photographs of the couple together with the sponsor's children. She has not presented any photographic evidence to the presently constituted Tribunal. The Tribunal gives this consideration significant negative weight. The applicant’s migration representative (in support of his client’s claims) submitted a number of photographs depicting the sponsor in Vietnam when he went to visit the applicant's parents and talked to them about their marriage. Their marriage took place, however, in 2009. The Tribunal gives those photos some weight but finds overall that that there is little evidence that the parties represented themselves to other people as being married to each other at time of application or later. The Tribunal gives this finding significant negative weight when examining any claims of social acceptance of the relationship by friends and family members.

15. At time of decision various friends of the parties have deposed to the presently constituted Tribunal that they shared companionship and meals with the parties over the years and that they behaved as a normal married couple prior to their separation including as parents of a child. The applicant has deposed that:

    When we lived together our families and friends were aware of our marriage. [Mr C] had travelled to Vietnam and visited my family after our marriage to introduce himself.

    Our landlord and friends were aware of our marriage as they saw that we lived together. I had provided my landlord's statements as well as friends in support of our marriage.

    When [Mr C] and I were free we visit friends and also invite friends over to socialise.

16. The present Tribunal finds that (despite the recent claims by the applicant and erstwhile friends of the parties) the cumulative evidence shows the social relationship between the parties was not a spousal one. The Tribunal has weighed the statements of the supporters with the claim by [Mr B] that he had been in a relationship with the applicant for two years. The evidence collected by the Department has firmly indicated a relationship between the applicant and [Mr B]. The Tribunal gives the Departmental evidence great weight due to its comprehensive, expert and contemporary nature. The fact that the applicant became pregnant with [Child A] is a further indication of the above finding. 

17. Despite her claims of maintaining a social relationship with her (then) husband and sponsor and representing it as such to friends - the Tribunal is satisfied that she was actually in a partner-like relationship with [Mr B] (who was the father of her child) around the time of application and possibly for a period of time prior to that. They had both arrived in Australia together, for instance, in 2007. There is no photographic evidence that the applicant and sponsor planned and undertook joint social activities - apart from the wedding photos in 2009. The evidence whether the parties represented themselves to other people as being married to each other and undertook joint social activities is reliant on the applicant’s and sponsor’s own statements and that of friends. The Tribunal gives this latter evidence little favourable weight for reasons already extrapolated particularly when juxtaposed with the significantly heavier weight it gives to evidence of the extra-marital relationship between the applicant and [Mr B] which resulted in the birth of the child - [Child A].

18. The Tribunal finds that the cumulative evidence before the Tribunal indicates (despite claims to the contrary) that the parties did not have a spousal social relationship.

    ·Nature of persons' commitment to each other - including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

19. The applicant told the Tribunal (separately constituted) she had met the sponsor at the house of a friend of hers. She said this friend, Ms [E], was the person who had encouraged her to come and live in Sydney. She had lived in their house when she moved to Sydney. She initially said that she had been living in the house and she met the sponsor because he had come to a party there.

20. The Tribunal (separately constituted) put to her that Ms [E], in her Form 888 stated "I introduced [Mr C] and [the applicant] when they visited me [in] December 2008." The Tribunal (separately constituted) indicated that this was not consistent with the applicant living in Ms [E]’s house at the time she met the sponsor. She then said that she had not continuously lived in Ms [E]’s house but tended to live close to wherever she could find work and had not been living there at the time she met sponsor. The Tribunal gives this inconsistency significant negative weight when assessing the nature of persons' commitment to each other.

21. The Tribunal (separately constituted) asked the applicant to describe how she met the sponsor. She indicated she could give very little detail other than to say they had met at the party and started talking. She subsequently said he had been sad because of his divorce. She said she had also been lonely and sad and so they had started talking. The Tribunal (separately constituted) asked what had attracted her to the sponsor. She said he had been kind and was a gentleman. She was not able to clarify further or to give any details of what had attracted her to him.

22. The Tribunal gives this inconsistency significant negative weight when considering the nature of persons' commitment to each other especially when was addressing the initiation of her relationship with her sponsor.

23. The Tribunal (separately constituted) asked the applicant whether, during the time she and sponsor were living together, there had ever been times when there was stress in the relationship. She said that her husband had worked long hours and sometimes came home tired and frustrated. Sometimes he did not get home until the morning. She had heard from other people that he had gambled and this had caused arguments between them.

24. The applicant said that since they have separated she and the sponsor had very little contact with each other. He now has another woman who does not like him to have any contact with her. She said that during the past year she had not had any contact with him at all. She subsequently said that he had visited her son, [Child A], on 5 or 6 occasions during the period since their separation.

25. The Tribunal (separately constituted) asked the applicant why she and the sponsor had sought formal Family Court access orders. She said that they had gone to see the migration representative to get these Orders arranged as the sponsor wanted to be able to visit the child to discipline him.

26. The Tribunal (separately constituted) put to the applicant that the Family Court Consent Orders made [in] May 2014 insist that the sponsor should have access in contact with her son, [Child A]. This was to be done upon arrangement with the child's mother. The Tribunal (separately constituted) asked her how the sponsor could have access to the child if there was no communication between them. She said that he used to come regularly to visit the child. The Tribunal (separately constituted) put to her that she had given evidence that in the past year she has had no contact with him and that she does not have a telephone number for her former sponsor. It put to her that she had said he had only visited the child 5 or 6 times since the separation. The Tribunal (separately constituted) noted that she did not comment on this. The Tribunal gives this contradiction significant negative weight.

27. The present Tribunal notes that the Court Order presumes that at one stage there was a relationship between the applicant and her former sponsoring spouse during which a child was produced ([Child A]). However, the Tribunal gives the Court Order minimal weight based on the overwhelming evidence presented from the Departmental site [visit]. The evidence gathered by the Department officers indicated that the applicant had been in a long-term relationship with her friend and lodger (Mr [Mr B]). He, it was revealed, was the true father of her child - [Child A]. In fact, she became  pregnant with [Child A] and it has been established that the father was [Mr B]. The Tribunal finds that the applicant, when questioned about events and persons in her life, has displayed poor credibility on a number of occasions and is not a reliable witness.

28. For instance, initially, she claimed that she did not know who the actual father of her son was. She has insisted, furthermore, that he was the product of a ‘one off’ sexual liaison with [Mr B]. She was challenged by the delegate to perform a DNA test on [Child A], in order to prove his true father. Unsurprisingly, she resiled from acceding to the request. She claimed that she had noted [Child A]’s similarity to [Mr B] which became more apparent with age – because otherwise the sponsor would never have known. [Mr B], on the contrary, after being apprehended working unlawfully, informed the delegate that he was the father. He also indicated that they had been in a long-term relationship with the applicant.

29. The Tribunal does not accept the claim that she and the sponsor were ever in a genuine spouse relationship. For instance, there was significant co-mingling found between her and [Mr B]’s belongings discovered on the site visit.  In the decision record the delegate had referred to the officer's comments that [Mr B] told the officers that he sleeps in the lounge area of the house. It was noted there was no mattress and no other personal belongings in this area. They also found all of [Mr B]'s belongings were in the applicant's bedroom which she claimed to share with sponsor. Furthermore, it appears she fell pregnant to [Mr B] prior to her application for the Partner visa with her sponsor (the subject of this review).

30. The Tribunal is satisfied that there was obvious co-habitation and a partner-like relationship between the applicant and [Mr B] which was discovered by Department officials. Following investigation. It was later confirmed by [Mr B]’s information to the Department that they were in a long-term relationship (see decision record on the Tribunal file). The contrary evidence of the parties’ connubial life is basically sourced from her friends. The more detailed information about [Mr B], as noted above, was put to her for comment in a letter dated 18 March 2016. She responded on 15 April 2016 and claimed that her relationship with [Mr B] was "a casual affair which we became intimate with each other for a short period of time." She also stated "relationship is more than sex as it involves a commitment, emotional support and also financial support."

31. The presently constituted Tribunal put to the applicant that [Mr B] had told the officers that [Child A] was his son and not the son of the sponsor. The applicant previously had advised the Department that [Child A] was not the biological son of the sponsor - as previously claimed. She had done this at the time the DNA evidence was requested. This indicated that she knew, without the need for DNA evidence, that [Child A] was not the biological son of the sponsor. She reiterated that the sponsor said he would be upset if the test was carried out.

32. At time of decision the Tribunal notes that various deponent friends of the parties have insisted that the parties were committed to each other before their separation following the DNA test letter and that the sponsor had visited [Child A] subsequently. The Tribunal does not accept this evidence as plausible when juxtaposed with the quantum of evidence negating that claim. There is for instance no photographic evidence of same ever presented to the Tribunal.

100.   At the recent Tribunal hearing (1728977) the applicant stated that when [Child A] was born she had thought he was the son of the sponsor. She said that when the Department had requested DNA evidence the sponsor had not wanted to have the test done because he would be upset if [Child A] were shown not to be his son. The Tribunal finds this explanation implausible in view of the overwhelming evidence contradicting it and gives it no weight.

101.   The present Tribunal (having examined the cumulative evidence before it) finds that the parties may have been married since 2009 but at time of decision the nature of the parties’ commitment to each other is that it is not present. The Tribunal finds that the applicant was already in a non-exclusive relationship and pregnant to [Mr B] (the house lodger) possibly prior to and at time of application. It can be deduced from this finding that she did not offer the former sponsoring spouse the appropriate companionship and support found in parties with a mutual commitment to a shared life. This finding indicates (despite her many claims) that the parties never saw the relationship as genuine but rather as a vehicle for a positive visa outcome for the applicant. The evidence at time of decision further confirms this finding because they have separated permanently and thus do not see the relationship as long-term. The Tribunal’s finding is that the nature of the persons’ commitment was not a spousal one.

·Any other circumstances of the relationship.

102.   Concerning parental-like behaviour on the part of the sponsor (Mr [C]) the Tribunal (separately constituted) asked the applicant whether, in the event of a medical emergency concerning [Child A], she would contact the sponsor. She said she could not contact him as his number did not answer and she no longer has any contact with him. The Tribunal gives this statement significant weight when considering the Parenting Order and whether the sponsor ever performed any actual parenting behaviour.

103.   In the decision record the delegate commented that when they were at the home they noticed that [Mr B] had a photograph on his iPhone of the applicant's son. [Child A]. [Mr B] had denied the child was his and said "No, I just like this baby". He later admitted that the child was his and that he had been in a relationship with the applicant for 2 years. The officers questioned the applicant about this. She had told them the child was not the child of [Mr B]. She advised that the father was the sponsor which is also stated on the child's birth certificate. [Mr B] then later changed his story again and advised that he was not the father.

104.   As a result of this information the Department wrote to the applicant on 28 April 2014 inviting the sponsor and [Child A] to undertake a DNA test to determine the paternity of the child. The applicant wrote to the Department on 4 June 2014 and advised that her relationship with the sponsor had broken down and they were permanently separated in early May 2014. She also advised that [Child A] was not the biological son of the sponsor as previously claimed. She said he was the biological son of [Mr B] as she had been in a "short-term affair" with him.

105. The Tribunal was perplexed (in view of the contrary evidence) why the Court Order was ever sought and executed on behalf of the former sponsor. For instance, when the cumulative evidence before the Tribunal is considered, [Child A] is obviously not the biological child of Mr[C]. It is clear that the applicant became aware that her purported Partner relationship with her (former) sponsoring spouse had foundered following the discovery of [Mr B] by Departmental Compliance officers and their subsequent investigation. Following the debacle of the Departmental site visit were the revealing statements made by [Mr B] to officers of the Department as part of their investigation. It is apparent that under the circumstances the applicant was ready to do ‘whatever it takes’ to achieve permanent residency. In desperation with her predicament (and needing a fall-back position) she has used the Court Order as an vehicle to resuscitate her (failing) Partner visa application so as to engage the ‘child exception’ clause found in cl.801.221(6)(c) of the Regulations.

106.   The Tribunal has considered whether the applicant’s former spouse and sponsor had/has a ‘parent-like’ relationship with [Child A].  However, the Tribunal, on balance, does not accept her claims that the former sponsor had initiated a parent-like relationship with [Child A]. For instance the applicant admitted to a (separately constituted) Tribunal Member that in the event of an emergency:

‘She said she could not contact him as his number did not answer and she no longer has any contact with him’.

Recently she claimed in response to a Tribunal Invitation that:

‘However, [Mr C] still cares for [Child A] by contacting [Child A] by phone and seeing him whenever he was free’.

107.   The Tribunal gives the applicant’s recent claim no positive weight in view of her proven poor credibility and her earlier statement to the Tribunal.

108.   The Tribunal rejects the notion that the Court Order somehow establishes or supports a spouse relationship between the applicant and her sponsor sufficient to meet the definition of spouse in s.5F of the Act at time of application and decision. The Tribunal is satisfied that the purported spouse relationship between the applicant and her former sponsor was undeniably artificial and concocted from its inception as a ruse to secure a successful visa outcome (permanent residency) for the applicant.

109.   The Tribunal has expressed its concern overall with the reliability of the applicant’s evidence in the case. There is the issue of her (and [Mr B]) lying to the Department about the parentage of her child - when interviewed by officers of the Department (see decision record on the Tribunal file). There is also the question of her behaviour surrounding the DNA request.

110.   The Tribunal rejects outright the claim made by the applicant (in rebuttal) that [Mr B] was part of a ‘one off’ sexual assignation between two friends comforting each other when the applicant was distressed. Apart from the revelations of the evidence from the ‘home visit’ which indicated she was in a continuing relationship with [Mr B] - there is also the admission that they both knew each other well and came to Australia together. Following this there is the unusual situation where [Mr B] was allowed to sleep for a lengthy period on the floor (ostensibly) because ‘he did not know anyone around [Suburb 1]’. Yet when the site visit took place there was no evidence of a separate mattress confirming his lodger status. Importantly, the officers found extensive co-mingled personal documentation in the applicant’s bedroom and his clothes were found in her (purported) spouse’s cupboard.  [Mr B] also displayed a background photo of the applicant’s son on his mobile phone. The co-mingling evidence is given maximum weight by the Tribunal when finding that the applicant and [Mr B]’s relationship was partner-like and long-term.

111.   The Tribunal finds that the Parenting Order is part of a last resort legal attempt to provide a satisfactory visa outcome for the applicant. It is readily apparent that the applicant and [Mr B] were in a partner-like relationship prior to and at time of application. The applicant was already pregnant to him. Both had travelled to Australia together years earlier - then supposedly separated. She claimed that they then ran into each other casually at [Suburb 1] shops - years later. When examining this claim it is plain that the credibility of the applicant has been shredded by her multiple changes of statement and conflicting evidence. The Tribunal finds her to be an unreliable witness.

112.   The Tribunal has considered ‘the full circumstances of the relationship’ pursuant to Reg.1.15A(3) and makes the following findings on these matters against s.5F(2)(b)-(d). The parties have never had a mutual commitment to a shared life to the exclusion of others, in a genuine and continuing relationship and they live separately and apart on a permanent basis.

113.   Given these findings the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision.

Legal obligations in respect of a child

114.   Where a spousal or de facto relationship has ceased and both the visa applicant and the sponsoring partner have ongoing legal rights or obligations in respect of a child, the visa applicant may be eligible at time of decision for the Partner 801 visa despite the relationship having ceased.

115.   To meet the requirements for this exception, the visa applicant must:

·have custody, joint custody of, or access to; or

·have a residence or contact order made under the Family Law Act 1975 relating to: at least one child, in respect of whom the sponsoring partner has:

·been granted joint custody or access by a court, or

·a residence or contact order made under the Family Law Act 1975, or

·a child maintenance order made under the Family Law Act 1975 or any formal maintenance obligation.

116. The terminology used in 801.221(6)(c) - paragraphs (A) and (C) - relate to the Family Law Act 1975 as it was before 11 June 1996. The terminology used in paragraphs (B) and (D) relates to the Family Law Act 1975 after 11 June 1996. Custody is defined in r.1.03 as '(a) the right to have the daily care and control of the child; and (b) the right and responsibility to make decisions concerning the daily care and control of the child.'

117. The Circuit Court found on appeal that the Tribunal decision (separately constituted) was affected by jurisdictional error as the Tribunal failed to consider whether the applicant satisfied the requirements of cl 801.221(6) of Schedule 2 to the Migration Regulations 1994, in circumstances where this was the specific criterion that the applicant sought to meet and evidence had been advanced in support of her claim to meet that criterion (D1, ff.232-235)..

118. The applicant has previously submitted a Consent Orders document pursuant to the Family Law Act 1975 (of 10 May 2014) to the Department. It reads as follows:

The parties mutually consent and agree with the following orders being made in care, custody, contact and residence of the child [Child A] born [date] with the intent to give full force and effect:

1.The Applicant and the Respondent have joint responsibility to care for the child's long term well beings.

2.That the child will live with the Respondent and the Respondent has custody of the Child.

3.That the Applicant has access and contact with the child upon arrangement with the Respondent.

4.The Respondent shall inform the Applicant of any change of residence address of the child.

5.That the Respondent shall not hinder or attempt to hinder the Applicant to contact the child.

1. Thus it can readily be seen from the Consent Order that the applicant and her sponsoring partner do meet the requirement for the child exception in cl.801.221(6) in paragraphs (B) and (D) of Schedule 2 to the Migration Regulations 1994.

2. However, the requirement in each of the Partner visa classes containing the ‘child exception’ is that the applicant would meet the requirement that they are the spouse or de facto partner of the sponsoring partner, except that the relationship has ceased and they meet the other requirements in relation to a child. This means there is a threshold requirement that a genuine Partner relationship (as relevantly defined in the Act) must have existed and that relationship has then ceased. If the relevant spousal or de facto relationship never existed, the child exception cannot be made out. The finding of the Tribunal is that the relationship never existed. Therefore, the applicant does not meet cl.801.221(6)(c).

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

   decision

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

   Michael Cooke
   Senior 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).