Argadiba (Migration)

[2017] AATA 2544

Argadiba (Migration) [2017] AATA 2544 (23 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shanty Mutiara Argadiba

CASE NUMBER:  1618411

DIBP REFERENCE(S):  BCC2014/3550035

MEMBER:Ann Brandon-Baker

DATE:23 November 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 23 November 2017 at 11:19am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Requirement to maintain sponsorship – Sponsorship withdrawn – Withdrawal valid at time of decision – Sponsor deceived applicant – Genuine spousal relationship – Lack of evidence of genuine continuing relationship

LEGISLATION

Migration Act 1958, ss 5CB, 65

Migration Regulations 1994, r 1.09A Schedule 2, cl 820.211, cl 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 20 October 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 December 2014 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221 because the sponsor withdrew his sponsorship of the applicant on 12 July 2016.

4. The applicant appeared before the Tribunal on 21 November 2017 to give evidence and present arguments. The Tribunal also received some oral evidence from the sponsor via telephone to India.

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

   BACKGROUND

6. The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

7. The applicant is a citizen of Indonesia born on 13 September 1989 (28 years old). She first arrived in Australia on a subclass 573 student visa on 17 June 2008. She was granted a bridging visa in relation to this application on 11 February 2013.

8. The sponsor is a citizen of Australia born in India on 2 September 1989 (28 years old). He first arrived in Australia on a subclass 572 student visa on 23 November 2008. He subsequently obtained permanent residency on the basis of a subclass 186 visa on 30 September 2014.

9. The parties claim to have met on 1 February 2012 and began a committed de facto relationship on 21 September 2013. There is a civil partnership certificate on the departments file at Folio 17. It is dated 4 December 2014.

10. The parties provided the delegate with a number of documents including the following; copies of some photographs of them together and with others; a copy of a broadband service statement for 2015-2016 in both parties names; copy of a dodo power and gas bill in joint names for the address in Thomas Street, Chermside for August 2015; copy of a tenant ledger for the Chermside address for October 2014 to March 2016 in both parties names; copy of a tenancy agreement for the Chermside property in both parties names; and copies of statutory declarations from friends attesting to the genuine nature of the parties relationship.

11. The parties lodged the application subject to this review on 24 December 2014. On 12 July 2016 the sponsor wrote to the department of immigration withdrawing his sponsorship. He signed a statutory declaration in front of a Justice of the Peace stating that the reason for his withdrawal in that his relationship with the applicant doesn’t seem to be going a long way and they have a lot of arguments which are getting worse.

12. The department wrote to the applicant and put to her that they had information that her relationship with the sponsor has ceased. In her response which she claims was written jointly with the sponsor, but signed only by her, she states that their relationship is genuine and ongoing and they have not spent any time apart and that they have never broken up once in their relationship. She states that she could not imagine being separated from the sponsor and does not believe that a long distance relationship would work.

13. The Tribunal wrote to the applicant on 2 November 2017 seeking her response to information that the sponsor withdrew his sponsorship on 7 July 2016. She provided the statements noted in paragraph 14(g) and 14(h) above. The letter was written in the following terms:

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MS SHANTY
    MUTIARA ARGADIBA AND MR JASKARAN SINGH

    I am writing in relation to the applications for review made by you in respect of
    decisions to refuse to grant Partner (Temporary) (Class UK) visas.
    In conducting the review, we are required by the Migration Act 1958 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
    decisions under review.

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

    The particulars of the information are:
     Information provided to the Department of Immigration and Border Protection
    indicates that your sponsor, Mr Jaskaran Singh, withdrew his sponsorship of the
    partner application subject to this review on 7 July 2016. On 13 July 2016 you were
    asked to respond to adverse information. You provided a relationship statement to
    the Department of Immigration and Border Protection in which you stated that you
    and your sponsor have not separated once in the last three years and that your
    relationship is genuine, ongoing and there has been no breakdown.
    This information is relevant as the Tribunal may find that you have been untruthful or
    that you are not in a continuing relationship, not sponsored and do not meet alternative criteria such as death of the sponsor, child of the relationship or meet family violence provisions or cl.820.221 and affirm 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:
     information that you meet requirements of cl. 820.221; that you are in a
    genuine and continuing spouse relationship or that you meet the alternative
    requirements of death of the sponsor, child of the relationship or family
    violence.

14. The applicant sent the Tribunal a number of documents including the following:

    a.Tenant ledger from 22 October 2014 to 1 July 2017 for an address in Thomas Street, Chermside

    b.Some photographs of the parties together and with others at various locations

    c.A TPG internet account for the period 23 August 2016 to 23 November 2016

    d.A general tenancy agreement in both parties names for the property at Thomas Street Chermside from 25 April 2016 to 24 April 2017

    e.Personal statements from each of the parties dated 27 January 2016

    f.Telephone records from 29 July 2017 to 31 October 2017

    g.An undated and unsigned statement allegedly from the sponsor claiming they remain in a relationship and stating that he had an unhelpful agent and he forgot to send immigration a comment on the adverse information

    h.An undated and unsigned statement allegedly from the applicant stating that their relationship is genuine and continuing and they have not broken up

15. The department’s movement records show that the sponsor departed Australia 0n 26 October 2016 and has not returned.

    Tribunal hearing

16. The applicant attended the Tribunal hearing but despite more than twenty attempts to contact the sponsor overseas, the Tribunal was only able to have a brief conversation with him wherein he confirmed that he withdrew his sponsorship but was unable to provide an explanation before the phone call was terminated.

17. The Tribunal has considered whether the parties should be given another opportunity to have a hearing or give further evidence, however it has rejected this on the basis that the parties have been given every opportunity to address the issue central to their case, and that is the withdrawal of sponsorship by the sponsor, and they have done so in writing. The Tribunal has no obligation to seek further evidence from the sponsor having received written responses to its request for information and comments.

18. The applicant told the Tribunal that she and the sponsor had moved to another address in July 2017 and provided an internet bill in their joint names at the new named address. Asked if there was any other evidence, such as a tenancy agreement or other bills she said there was not.

19. The applicant told the Tribunal that the sponsor had departed Australia on 26 October 2017 and she did not know when he was returning. She said that he bought a house before he left but it would be completed in December so he may be home in December or January. The applicant was unable to tell the Tribunal the address of this new house as she had only been there once. She had no evidence of this purchase and even so, the purchase is in the sponsor’s name only.

20. Asked if they had any evidence to provide the Tribunal of the existence of their relationship prior to the end of 2014, such as phone records or bank statements, the applicant said that she had provided a copy of their joint bank account. The Tribunal put to the applicant that the statement was for the period March-April 2016 and consisted of only a few transactions. She said that they both had their own accounts but didn’t think to submit statements.

21. The Tribunal asked the parties why, given their conservative backgrounds, they had not married and she said that for her marriage was a once in a lifetime thing and required a strong commitment. The Tribunal put to her that it sounded like she didn’t have that commitment and she claimed that she did. She said that their parents knew that they were living together. The Tribunal put to the applicant that surely their respective parents would be happier if they were married rather than living together and she said that two different religions marrying was not accepted in her culture. Asked what the sponsor’s family thought about their de-facto relationship, the applicant said that she didn’t know and the sponsor never talked to her about that.

22. The Tribunal put to the applicant that it was having difficulty forming a view that she and the sponsor were in a genuine relationship given the absence of any reliable or corroborating evidence. The Tribunal put to the applicant that there was no evidence, apart from their personal statements, that the relationship existed prior to late 2014. The Tribunal put to the applicant that depending on her response, it may form a view that the marriage was contrived for the purposes of obtaining a migration outcome for her. She denied this.

23. The Tribunal put to the applicant that the statements she provided allegedly from herself and the sponsor in response to the Tribunal’s letter of 2 November 2017 were neither dated nor signed. Asked why this was the case, the applicant said she didn’t realise they had to be signed. The Tribunal also put to the applicant that they were not sworn statements and hence had little weight.

24. The Tribunal asked the applicant whether she had written her statement and if it was a truthful account she said that she wrote it and it was truthful. Asked if the sponsor was the author of the statement attributed to him, the applicant said that he was. The Tribunal put to the applicant that the statements both sounded the same and looked the same; they had the same style, cadence, format and phrasing. The Tribunal asked the applicant again if she had authored the document and she said that she had not, but that the sponsor had written it.

25. The Tribunal asked how she received the letter from the sponsor, noting that it was in the same style, cadence, format and phrasing as the statement she claimed was hers. She said that the sponsor emailed it to her. Asked why she didn’t provide the email trail with the letter attached as proof that it came from him, the applicant said she didn’t think she had to.

26. The Tribunal put to the applicant that the matter of the withdrawal of the sponsor’s sponsorship was central to the outcome of this case, and reminded her of the words in the Tribunal’s letter of November 2. The Tribunal asked the applicant why neither she, nor the sponsor, addressed this matter directly in their responses to the Tribunal’s letter.

27. The applicant told the Tribunal that she and the sponsor had discussed this many times and he had told her that he never withdrew his sponsorship. She said that from her point of view, he never withdrew his sponsorship. The Tribunal put to the applicant if that was the case why didn’t both of them immediately draw the Tribunal’s attention to this fact by putting it in their respective statements. The applicant did not respond. The Tribunal showed the applicant the statutory declaration whereby the applicant withdrew his sponsorship and she said she was shocked. The Tribunal put to the applicant that the sponsor had not subsequently rescinded that withdrawal nor advised either the department or the Tribunal in any way that he had rescinded that withdrawal despite having been given several opportunities to do so. The Tribunal put to the applicant that on the basis of the evidence before it and depending upon any other comments or response she had to make,  the Tribunal would form the view that the withdrawal still stood and that would be the reason or part of the reason for affirming the decision.

28. The applicant had no further comment or response.

29. Subsequent to the conclusion of the hearing the sponsor emailed the Tribunal affirming that he had withdrawn his sponsorship but didn’t inform the applicant at the time. He claims that he was the author of the letter but didn’t sign it because he didn’t think the applicant could submit an unsigned document. He said that the applicant did not submit any false documents and her application therefore should not be subject to a 4020 ban.

30. The Tribunal has considered this information and notes that it does not add to or detract from the Tribunal’s decision. Nor has this information been used in an adverse way in relation to the Tribunal’s decision. The Tribunal had already put the sponsor’s withdrawal of his sponsorship to the applicant in writing and received a written response. It also took evidence on that matter during the hearing. It was clear on the evidence already before it that the sponsor had withdrawn his sponsorship. In the Tribunal’s mind, the sponsor was not confirming that withdrawal in his email after the hearing because there was any doubt that he had done so, but he merely sought to inform the Tribunal that the withdrawal had occurred without the applicant’s knowledge. This information does not affect the Tribunal’s decision in any material way.

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

    Whether the parties are in a spouse or de facto relationship

32. Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen.

    Are the parties in a de facto relationship?

33. As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

34. In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision.

35. The Tribunal has considered the 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 household expenses.

36. The parties were only able to provide a joint bank statement for the period March to April 2016 as evidence of their joint finances. The applicant claims that the sponsor has purchased a house but this is in his name only and she was unaware of its address. The parties have no joint liabilities and did not provide any additional reliable evidence that they shared day to day household expenses. They do not claim to have any legal obligations owing to each other or have any joint ownership of any assets.

37. The Tribunal is not satisfied that the financial aspects of the parties relationship supports a finding that they are or ever have been in a genuine, ongoing and exclusive spousal relationship envisaged by the Migration Act.

38. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

39. The parties have no children. Whilst the applicant claims to be residing with the applicant and has shown joint tenancy arrangements between October 2014 and July 2017 the Tribunal is not satisfied that this is sufficient evidence that they lived together at that address as spouses, or as roommates. There is little evidence apart from their personal statements that they have known each other since 2012 and began living together in September 2013 as they claim. The Tribunal also notes that the applicant claims that they moved in together with their cousins at another named address in July 2017, and apart from an internet bill in both their names going to that address she was unable to produce any other evidence that she and the sponsor continued to live together at that address, or anywhere else.

40. The Tribunal is not satisfied that the nature of the parties’ household supports a finding that they are in a genuine, continuing and exclusive spousal relationship as envisaged by the Migration Act.

41. The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with 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.

42. There is little reliable evidence before the Tribunal that the parties represent themselves to other people as being in a de-facto relationship or that their family are aware of their relationship. The Tribunal notes the two statutory declarations they have provided in support of their relationship from work mates who claim to have known the parties for less than one year. The Tribunal gives this little weight.

43. The Tribunal accepts that the parties have undertaken some joint social activities but on balance the Tribunal is not satisfied that the social aspects of the parties’ relationship supports a finding that they are in a genuine, ongoing and exclusive spousal relationship as envisaged by the Migration Act.

1. The Tribunal has considered the 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.

2. The parties claim to have first met in 2012 and that they began living together in September 2013. They lodged their application for the visa subject to this review on 24 December 2014. The parties have provided little reliable evidence, apart from their own personal statements that they were in a de facto relationship from 2013 as they claim, or that they have known each other since 2012. The Tribunal has not accepted this claim and is not satisfied that they were living together at this time or if they were, that they were living together in a spousal relationship as required by the Migration Act.

3. The sponsor withdrew his sponsorship of the applicant via a statutory declaration he wrote and signed on 12 July 2016 and witnessed by a Justice of the Peace and sent to the department. The Tribunal put this information to the parties in writing on 2 November 2017 and sought their comments, noting that depending upon the response that information would be the reasons, or part of the reason for affirming the decision under review.

4. In their written response to the Tribunal neither party mentioned the withdrawal of the sponsorship. Indeed, neither provided an account that might lead the Tribunal to form a view that the sponsor had not intended to withdraw his sponsorship such that the sponsorship should still be considered valid.

5. The sponsor has not subsequently rescinded that withdrawal to the department or the Tribunal nor provided any plausible explanation as to why he withdrew his sponsorship in the first place. The sponsor admitted to the Tribunal that he withdrew his sponsorship during the hearing but was not able to explain why before the call was terminated.

6. The Tribunal has considered the account the applicant has given of the sponsor’s withdrawal of his sponsorship and has formed a view that she indeed was not aware of the sponsor’s withdrawal and has been deceived by him. If the sponsor had not withdrawn his sponsorship as he claimed to the applicant, it seems to the Tribunal he would have confirmed this in his written response to the Tribunal when it put this information to him. Equally, it seems to the Tribunal that he would have then proceeded to deny he had withdrawn his sponsorship when the Tribunal phoned him during the hearing. The Tribunal can only speculate as to why the sponsor would continue his deception with the applicant knowing that she had been made aware of his withdrawal in the Tribunal’s letter of 2 November 2017.

7. In light of the above the Tribunal finds that the sponsor has withdrawn sponsorship and has not subsequently sought to rescind that withdrawal or reinstate his sponsorship of the applicant despite being given the opportunity to do so on at least two separate occasions. He affirmed that he withdrew his sponsorship at the hearing.

8. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) have been met either at the time the visa application was made or the time of this decision.

9. Therefore the applicant does not meet cl.820.211(2)(a)(i) or cl.820.221. There is no evidence before the Tribunal that the applicant meets the alternative criteria in cl.820.211(7), 820.211(8), 820.221(2), 820.221(3).

   CONCLUSION

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

    DECISION

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

    A B Baker
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).