1815581 (Migration)

[2019] AATA 3209

1815581 (Migration) [2019] AATA 3209 (20 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815581

MEMBER:Angela Cranston

DATE:20 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 20 March 2019 at 1:36pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – requirement to not have spouse – did not declare de facto spouse – inconsistent evidence from previous visa application and social media page – no longer member of sponsor’s family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 101.213(1)(a), 101.221(2)(b), r 1.09A(4)

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 Home Affairs on 23 May 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2.    The visa applicant applied for the visa on 18 August 2016. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative).

3. In this case, claims have only been made in respect of Subclass 101 (Child). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.213(1)(a).

4.    In the application, the applicant’s current relationship status was ticked as never married or been in a de facto relationship and in a statutory declaration dated 2 August 2016 and lodged with the application, the review applicant stated that the applicant had never been married nor had she been in a de facto relationship. Also submitted were statements from [the grandmother], [Mr A], the applicant and [Mr B],

1. The delegate refused to grant the visa on the following basis:  

Clause 101.213 requires that the applicant does not have a partner or a de facto spouse and has never had a spouse or a de facto partner.

In her visitor visa application lodged with our office in March 2015 [the] applicant declared [Mr A] as her spouse/de facto partner. In August 2016 the applicant lodged her child visa application where she claimed to be never married or in a de facto relationship. This inconsistency was put to the applicant during a telephone interview on 5 June 2017. The applicant noted that (sic). While I note her explanation I find that the applicant hasn’t provided any plausible reasoning why she has previously declared [Mr A] as her de facto partner. The applicant has also stated that the romantic relationship with [Mr A] was terminated approximately in 2014-2015. This contradicts the information available on the applicant ‘social profile page where she has been posting photos with [Mr A] for the last several years indicating her romantic nature of the relationship.

The information outlined above leads me to believe that the applicant is no longer a member of the family unit of [the review applicant], but in a de facto relationship with [Mr A] and that she does not reside at her claimed address but lives together with her de facto spouse.

On 19 July 2017 the applicant was invited to provide comments to the inconsistent information regarding her marital status in her visitor visa and child visa applications.

On 7 August 2017 we have received the following: a submission from the agent, a statement from the applicant, a statement from the applicant’s mother, a statement from the applicant’s grandmother, a statement from [Mr A] and set of photographs picturing the applicant’s room and a bank statement showing the applicant’s address.

In her statement the applicant indicated that a mistake was made in the visitor visa application by their mother as they did not know the meaning of the ‘de facto relationship’. The applicant further claimed that she had lived with her grandmother at all the times and had never lived at a different address. The applicant’s mother, the applicant’s grandmother and [Mr A] confirm this statement.

I have carefully considered the explanation provided by the applicant, her relatives and [Mr A] however I do not accept this explanation as reasonable. According to the form 47CH provided the applicants claim residential address is [deleted]. On 7/6/2017 and 8/6/2017 Australian Embassy officers visited the applicant’s claimed address but were unable to locate her at that address on several occasions. Officers obtained permission to enter her declared household by the applicant’s grandmother. The officers found no evidence of cohabitation. Based on these findings the officers were not satisfied that the applicant was residing at the specified address.

I have also considered the bank statement and I do not accept it is as acceptable evidence of the applicant’s residential address. It is a wide known practice that bank record applicants addresses according to registration address in the passport and they do not record applicant’s actual residential addresses.

As no other independent objective/ documentary evidence confirming the applicant’s residential address has been provided, I find that [the applicant] is or has been in a de facto relationship with [Mr A] and that she does not reside at her claimed address but lives or has lived together with her de facto spouse.

6.    The review applicant applied for review and submitted the above departmental decision together with the following statutory declaration dated 15 November 2018:

I declare that my daughter [has] never been married nor has she been in a de facto relationship.

I made a mistake when completing a form of a visitor visa application of my daughter in March 2015 when I invited her to visit us in Sydney to celebrate her [birthday]. My daughter was dating a boyfriend at that time, his name is [Mr A]. She mentioned that it would be nice if he could join too. So I put in the form that my daughter was in a ‘de facto’ relationship with [Mr A] without paying attention to the meaning of a definition of a de facto relationship. I had an impression that a boyfriend- girlfriend relationship meant a de facto relationship. Due to lack of comprehension and stress caused by separation from my ex-husband I made that terrible mistake unwittingly. I did not know what kind of consequences it would cause in the future. My daughter was not responsible for that. I was the one completing the forms on her behalf. I just wanted to make my daughter happy so her boyfriend could come with her to Australia on holiday. But [Mr A]’s parents did not approve his travel. My daughter travelled alone to Australia in 2015. Later she stopped dating [Mr A] but they remained as friends.

7.    The review applicant appeared before the Tribunal on 20 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and applicant’s [grandmother]. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

8.    The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

9.    The review applicant stated she used Google translate to complete the tourist visa application and the applicant had not seen how she completed the form. She stated she had mentioned the applicant’s boyfriend and had wanted him to accompany the applicant to Australia but his parents had not approved. She stated she didn’t have her own Immi account and had asked used her ex-husband’s Immi account. She stated she didn’t know the meaning of the word ‘de facto’ so looked at the examples on the form which were widowed, divorced and de facto, and thought de facto the most relevant option for a boyfriend/girlfriend relationship. She stated she didn’t know the word for a civil marriage. She stated when she finished the application she asked her ex-husband to double check even though they did not have the best relations at the time but he didn’t care what she had put in the application. She also stated she had asked her ex-husband to remove [Mr A] as an accompanying person but did not pay any attention to the fact that he had been left him as a de facto partner.

1. The Tribunal put to her that in the applicant’s tourist visa application lodged in March 2015 [Mr A] had been included as the applicant’s spouse/de facto partner. The review applicant stated that was her mistake which the applicant had not even seen. The Tribunal also put to her that the department had put the inconsistency to the applicant in a telephone interview in 2017 and had recorded that she told the department that her romantic relationship with [Mr A] had finished in approximately 2014/2015 but that was contradicted by information on her social profile page where she had been posting photos with [Mr A] for the last several years. The review applicant stated they stopped being in a romantic relationship but remained friends. The Tribunal also put to her the department said they went to where the applicant said she lived on two separate occasions but did not find the applicant at that address and also said they found no evidence of cohabitation. The review applicant stated the applicant was living at that address and at no other address.  She also said [Mr A] lived at another address with his parents.  She also stated that when the department came the applicant was at the movies and that the Department had contacted the applicant by telephone and she told them she could return to the address as required.

2. The Tribunal put to her that at two different points in the tourist visa application it identified that the applicant was in a relationship with [Mr A], that is one question asked about the applicant’s relationship status and the answer was de facto and another question asked does the applicant have any family members not travelling to Australia who are not Australian citizens or Australian permanent residents and the answer was yes and the question asked for the relationship to the applicant and the answer was spouse/de facto partner. She stated that was her mistake and she had asked her ex-husband to help her and then found out that [Mr A] was not coming. The Tribunal put to her that she had said she used Google translate to fill out the form but when specifically asked about the relationship between [Mr A] and her daughter it said spouse/de facto. She stated she just ticked the form. She also stated that when she was answering this question she answered spouse/de facto because the answers went together.

3. The Tribunal put to her that the department said at interview with the applicant on 5 June 2017 the following conversation occurred:

   Do you have a boyfriend?

   no.

   have you been dating someone in the last 12 months?

   no.

   You applied for a visitor visa in 2015 and declared [Mr A] as your de facto spouse please comment?

   We are friends.

   then why did you indicate him as your de facto partner?

   I don’t know.

   Have you ever lived together?

   no we were dating.

   so you were in a romantic relationship with him?

   yes but now we are not.

   when did you break up?

   2 to 3 years ago I don’t remember exactly.

4. The Tribunal put to the review applicant that the Department said the applicant posted several pictures with [Mr A] for example on 14 February 2017 indicating that they were in a romantic relationship and the applicant had said ‘well we are friends not a couple maybe we haven’t decided yet whether we are together or not’. The Tribunal put to the review applicant that it was concerned that she had lodged an application for a tourist visa saying that [Mr A] was her spouse/de facto partner and that the department said that they found pictures on the Internet that suggested that they were in a romantic relationship. She stated the applicant was not in a romantic relationship but had not changed her status on social media from romantic relationship. When asked for clarification the review applicant stated she hadn’t paid much attention to the Internet and social media at the time because the applicant’s grandmother was ill. The Tribunal also put to her that the department said they had visited the place where the applicant claimed to be living on two different occasions but could not locate her at that address. The review applicant also stated the applicant had her possessions and documents there and her grandmother had shown the department what was there.

5. The Tribunal then spoke to the applicant who stated that she did not complete her tourist visa form which was done by the review applicant who did not know the translation of the word ‘de facto’. The Tribunal put to her that the department had asked her in June 2017 if she had a boyfriend and she said no. They also said that she told them that she had been in a romantic relationship with [Mr A] but had broken up about 2 to 3 years ago but that she had posted several pictures with him including on 14 February 2017 that indicated that she was in a romantic relationship with him. She stated she did not have a boyfriend, they split up in 2015 but were still friends. The Tribunal put to her that the department also visited her claimed address on 7 June 2017 and 8 June 2017 but she was not there and they formed the view that she did not live there. The applicant stated they came without warning and if she knew, she would have waited for them. She also stated her grandmother had shown documents and possessions that indicated that she lived there. She stated she did not agree with the decision because she was living with her grandmother and telling the truth. When asked what she was doing when the department came,  she stated on the first occasion it was during the evening and she went to the movies and on the second occasion it was her grandfather’s birthday so her grandmother sent her to the markets.

6. [The grandmother] stated that the applicant lived with her. She stated she herself was ill and the review applicant financially supported the applicant. She also stated that if anything happened to her then the applicant would be the only one living in that part of the world. When it was put to her that the Department said that the applicant was in a de facto relationship with [Mr A], she stated that was about five years ago when they were in college, they were friends and were meeting each other but for the last four years she had not even seen him.

7. The adviser stated that the review applicant’s ex-husband submitted the application from his Immi account. She also stated that originally [Mr A] had been referred to as an accompanying friend and when he could not come, the review applicant had asked her ex-husband to change that and he had then identified [Mr A] as a non-accompanying family member. She also submitted that the review applicant had not seen the tourist visa application before it was submitted.

8. The review applicant also stated the applicant was too young to live with anyone and the review applicant was sending her money.

9. Following the hearing, the Tribunal received the following:

Initially, when filling a visitor visa application for my daughter, I put [Mr A] into a section: travelling companions

Then when my daughter told me that [Mr A] cannot come because his parents did not approve his travel, I asked my ex-husband [to] change the information in the form (namely to remove [Mr A] from travelling companions) and to submit [my daughter]’s application as he was an Immi account holder. I was using his account to fill the form but he was an authority to check if all correct and to lodge an application.

I suppose my ex-husband just moved [Mr A] from section travelling companions into section non-accompanying family members without my knowledge.

I have already explained in my earlier statements that my ex-husband and I were going through a separation process at that time. My ex-husband [was] not in a good relationship with his [step-daughter]. He did not know anything about her personal life. He did not want her to move with us to Australia.

I have not seen the final amended visitor visa application form.

in July 2017 I asked my ex-husband to send me that form since I did not have an access to his Immi account anymore.

He refused to do so and said to me:

Very good she ([visa applicant]) did not get a visa. I never wanted her to come to Australia.

I’m really sorry I was so emotional at the end of the hearing. This is because of my poor literacy I made such a terrible mistake that may affect my daughter’s life and her ability to reunite with the family.

1. Following the hearing, the Tribunal sent the following:

At interview on 5/6/2017 it is recorded in writing that the following exchange took place
between your daughter and the Department of Immigration:
Q. Do you have a boyfriend?
A. No
Q. Have you been dating with someone in the last 12 months?
A. No
Q. You’ve applied for vv in 2015 and declared [Mr A] as your de-facto
spouse. Please comment?
A. We were friends
Q. Then why did you indicate him as your de facto partner/civil husband?
A. I don’t know why
Q. Have you ever lived together with him?
A. No we were dating.
Q. So you were in a romantic relationship with him?
A. Yes but now we are not
Q. When did you break up?
A. 2-3 years ago, don’t remember exactly
Q. You declared him as your boyfriend on Vkontakte?
A. I didn’t use VK for a long time.
Q. I can see that you’ve been in Vk today?
A. My phone was stolen, and it’s not possible
…
Q. You posted several pictures with him on VK, for example 14 Feb 2017 indicating
that you are in a romantic relationship with him?
A. Well we are friends, not a couple. Maybe we haven’t decided yet if we are together
or not.
In another statement dated 14 June 2017 on file your daughter states the following:
We (she and [Mr A]) did not have any other relationship apart from
friendship

This is relevant because the Tribunal may find that your daughter’s evidence in
relation to her relationship with [Mr A] has continued to change and may
lead the Tribunal to find that it is not satisfied she is telling the truth about her
relationship with [Mr A]. If the Tribunal finds that it is not satisfied that she is
telling the truth when she states she has never been in a de facto relationship with [Mr A] then subject to your comments, the Tribunal would find she does not meet 101.213 and would affirm the decision under review.

1. The Tribunal received the following:

In my letter dated June 14, 2017 I indicated that I and [Mr A] had no other relationship apart from friendship.

In the interview I indicated that we used to have a romantic relationship.

My both statements are correct.

I would like to explain why.

We have always been friends with [Mr A] except in the beginning this friendship had a romantic touch to it.

Therefore I indicated that we had a romantic relationship.

But that relationship was not deep and serious.

At the very beginning when I first met [Mr A] we went to college together. I was 17 years old then. We were friends with [Mr A], me met on weekends, went out of town for picnics, to the cinema, cafes and so on.

At the very beginning we had romantic feelings for each other, something like first youthful love. After a period of time about two years I went to study at the University, it was a correspondence course because I had to look after my sick grandmother.

Our paths with [Mr A] diverged and we began to see each other much less often.

Our romantic feelings almost vanished.

We are still friends and sometimes we meet at parties. We have many mutual friends. Regarding my status in social network, I just did not pay any attention to it and did not change the status since the time I met [Mr A].

I assure you once again that [Mr A] and I have never lived together or been in a de facto relationship.

1. The applicant’s adviser provided yet another submission on 20 March 2019 essentially repeating previous submissions but clarifying that the form option offered was spouse/de facto, that ‘/’ meant ‘or’ and a person had to identify whether one or another definition was applicable. She also stated that during the site visit the officers found high hill shoes and it was doubtful that they belonged to an old ill grandmother.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is cl.101.213(1)(a). That means that at the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

2. The delegate refused the visa applications on the basis that the applicant did not satisfy subclause 101.213(1)(a)(iii) to the Migration Regulations 1994 (the Regulations) because she had been in a de facto relationship.

3. In the visa application lodged August 2016 the applicant indicated that she was never married or in a de facto relationship however in an application for a visitor short stay visa lodged March 2015, in answer to the question relationship status, it is indicated that the applicant is in a de facto relationship and in answer to another question, ‘non-accompanying family members’ which asks ‘does the applicant have any family members not travelling to Australia who are not Australian citizens or Australian permanent residents?’ it is recorded that [Mr A] is the applicant’s spouse/de facto partner. In the Tribunal’s view, visitor short stay visas are granted to applicants who genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted and the presence of a de facto partner outside Australia would be relevant to that determination.

4. At hearing, the review applicant has stated that it was her mistake to identify [Mr A] because she used Google translate to complete the tourist visa application, did not know the real meaning of the word ‘de facto’ looked at the examples on a form that included widowed, divorced and de facto and chose that which looked most relevant. She also stated that after she had finished, she asked her ex-husband to double check and had also asked him to remove [Mr A] as an accompanying person. She stated she had seen that he had removed him but did not pay any attention to the fact that he left [Mr A] as a de facto partner. After hearing, she stated that she knew the applicant was dating [Mr A] at the time of the visitor visa application and supposed her ex-husband just moved [Mr A] from the section ‘travelling companions’ to the section ‘non-accompanying family members’ without her knowledge.

5. While the review applicant has stated that she was stressed and did not understand the real meaning of the word ‘de facto’, the Tribunal considers that her answers were not provided in a vacuum and must be considered in relation to the questions that were asked in the visitor visa application. In the Tribunal’s view, the form is clear and unambiguous and asks for the applicant’s relationship status as well as for any non-accompanying family members or any family members not travelling to Australia who are not Australian citizens or Australian permanent residents. The Tribunal finds that when specifically asked in the tourist visa application about the applicant’s relationship status, the answer given is de facto and when specifically asked about non-accompanying family members, the answer given is [Mr A] who is then identified as the applicant’s spouse/de facto partner. While the review applicant has stated that these answers were her mistake compounded by her ex-husband who moved her incorrect answer into the non-accompanying family member section, the Tribunal does not accept that two people would make such a mistake and tick spouse/de facto to describe the relationship if in fact [Mr A] was not the applicant’s de facto partner at the time of that tourist visa application. Neither does the Tribunal accept that they would then make the additional mistake and identify [Mr A] as a non-accompanying family member if he was not considered a family member.

6. In reaching this conclusion, the Tribunal has also taken into account that the applicant’s own answers in relation to her relationship with [Mr A] have continued to change, that is at interview on 5 June 2017 it is recorded in writing that the applicant initially stated that she had not been dating someone in the last 12 months and that she and [Mr A] had been friends when she applied for a visitor visa in 2015 however she changed that evidence and said that they had been dating and had broken up 2-3 years ago. When it was put to her by the Department that she had posted several pictures with [Mr A] on social media indicating that she was in a romantic relationship with him, she stated they were friends, not a couple and that maybe they hadn’t decided yet if they were together or not. She also stated that regarding her status in the social network, she did not pay any attention to it and did not change the status since the time she met [Mr A]. However in yet another statement dated 14 June 2017 she stated that she and [Mr A] became friends and did not have any other relationship apart from friendship. When this apparent inconsistency was put to her in writing, she stated that both answers were correct because their romantic relationship had never been deep and serious.

7. Given the applicant’s changing evidence in relation to whether she and [Mr A] were ever in a romantic relationship or just friends, the Tribunal is not satisfied she is telling the truth about her relationship with him.  In reaching this conclusion, the Tribunal has considered the photos and bank statement and subsequent statements of the applicant, the applicant’s mother, the applicant’s grandmother and uncle, and [Mr A] who all state that the applicant has lived with her grandmother. The Tribunal has also considered the adviser’s submission that it is doubtful that high hill shoes belong to an old ill grandmother. However given the visitor visa’s answers and the applicant’s inconsistent statements in relation to her own relationship with [Mr A], the Tribunal is not prepared to accept the veracity of these statements or that high hill shoes mean that the applicant was living with her grandmother. The Tribunal has also considered the letter from [Mr B] however he has no personal knowledge of the applicant’s circumstances other than what has been relayed to him by the review applicant.

8. While it has been argued that there is insufficient evidence before the Tribunal to make a positive finding that the applicant’s relationship with [Mr A] amounts to or amounted to a de facto partner relationship as defined by the legislation, neither is it (unlike when the applicant applied for the visitor visa) in the applicant’s interest to now provide such evidence or detail the nature of their commitment to each other. The Tribunal accepts that the legislative definition of de facto means that parties must have a mutual commitment to a shared life to the exclusion of all others; and the relationship between them is genuine and continuing; and they live together; or do not live separately and apart on a permanent basis. The Tribunal accepts that that it must consider all of the circumstances of the relationship, however pursuant to r.1.09A(4) it is not mandatory that it consider the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.

9. The Tribunal considers that when the applicant applied for her tourist visa in 2015, she and her family held herself out to Australian authorities as in a de facto partner relationship with [Mr A]. There is also evidence that in 2017 the parties have undertaken joint social activities for several years and the Department formed the view in 2017 that the applicant was not living at her claimed address. While the parties have disputed this and have provided photos of clothes and the applicant’s bank statement which is addressed to her claimed address, the Tribunal is not persuaded, in all of the circumstances of this case, that the applicant has never had a de facto partner and finds that the applicant was in a de facto partner relationship with [Mr A] at some stage. Accordingly,cl.101.213(1)(a) is not met.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Angela Cranston
Member