Boyce (Migration)

[2018] AATA 4874

Boyce (Migration) [2018] AATA 4874 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peter Rodney Boyce

CASE NUMBER:  1704951

DIBP REFERENCE(S):  CLF2011/95476

MEMBER:Ian Garnham

DATE:23 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 23 October 2018 at 2:57pm

CATCHWORDS
MIGRATION – Federal Circuit Court remittal – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – de facto relationship – breakdown of relationship – transfer of funds to sponsor – non-judicially determined family violence claim – no evidence submitted – decision under review affirmed

PRACTICE AND PROCEDURE – visa applicant offshore – declined hearing invitation

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 60
Migration Regulations 1994 (Cth) rr 1.09A, 1.23 1.24 Schedule 2 cl 801.221

CASES
Dang v Minister for Immigration [2016] FCCA 1426

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 4 September 2013 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 14 June 2011 on the basis of his relationship with his sponsor, Ms Hammond. 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. Relevantly to this matter the primary criteria include cl.801.221.

3. On 17 February 2012 the Department of Immigration and Border Protection (DIBP) granted the visa applicant a subclass 820 temporary partner visa.

4. On 4 September 2013 the delegate refused to grant the subclass 801 permanent partner visa on the basis that the applicant did not satisfy cl.801.221 because they did not provide any information to reach a view that any of the requirements of this clause were met by the review applicant’s circumstances. 

5. On 10 December 2013 the visa applicant applied to the predecessor of this tribunal (MRT[1]) for review of the delegate’s decision.

   [1] Migration Review Tribunal

6. The applicant appeared before the MRT (differently constituted) on 4 June 2014 to give evidence and present arguments (the hearing).  At the hearing the visa applicant sought to argue that he met cl. 801.221(6) of the legislation.

7. On 25 June 2014 the MRT affirmed the decision under review (1313408).  The visa applicant sought judicial review of this decision. 

8. On 1 February 2017 the Federal Circuit Court of Australia (FCCA)[2] remitted this matter to this tribunal for determination according to law.

   [2] BOYCE v Minister for Immigration & ANOR [2017] FCCA 16

9. The Court found that the tribunal had erred in its application of cl.801.221 because it proceeded on the basis that the absence of a de facto relationship at the time of decision had the result that cl.801.221(6) was not enlivened.  This meant the tribunal did not consider the visa applicant’s claims that he had suffered family violence committed by the sponsoring partner.  Whereas cl.801.221(6) requires that the relationship between the visa applicant and the sponsoring partner has ceased before a claim of family violence can be considered. 

10. The Court also found that the tribunal had failed to fulfil its obligations with respect to s.360 of the Act because it did not alert the visa applicant to the fact that; whether he had ever been in a de facto relationship with his sponsor may be in issue.

    This review:

11. The visa applicant left Australia on 05/04/2017 and has not returned.  On 30 November 2017 the tribunal wrote to the visa applicant and invited him to a hearing of this matter.

12. On 14 December 2017 the visa applicant wrote to the tribunal and advised, among other things, that he would not be represented or attend the hearing.  He claimed he had no more information available than what was already before the tribunal in the papers and that he had no further relevant information to disclose to the tribunal.  Accordingly, I proceeded to conduct the review based on all of the material before me pursuant to s.360(2)(b) of the Act.

13. I have listened to the previous tribunal hearing of this matter.  I have also considered all of the documentary evidence contained in the DIBP and tribunal files.         

14. In Boyce, Cameron J has concisely summarised the evidence and submissions before the Court, and the evidence before and findings made by the delegate and the previous tribunal (1313408) in this matter.  The Court also summarises; the evidence the visa applicant and sponsor provided to DIBP and the findings and conclusions of the delegate.[3]  The proceedings of the previous tribunal[4] and the tribunal’s decision and reasons[5] are also summarised in Cameron J’s reasons for judgment.

    [3] At paras: 8-14

    [4] At paras: 15-18

    [5] At paras 19-21

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    SPOUSE/DEFACTO (cl.801.221(2))

    Whether the parties were in a spouse or de facto relationship

16. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner 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 Subclass 820 visa application as the spouse or de facto partner of the applicant.

17. In the present case the applicant claimed to be the de facto partner of the sponsor who is an Australian permanent resident and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor was the ‘sponsoring partner’ of the applicant.

    Were the parties in a de facto relationship?

18. As the parties are not validly married, 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).

19. 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.

20. It is not in dispute in this case, that the relationship between the visa applicant and his sponsor, (if it ever existed) has long since ended. 

21. The central issue is whether the visa applicant meets cl.801.221 of the legislation.  To do so an applicant must meet any one of the available subclauses:

    801.221

    (1)The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

22. After lodging the application on 14 June 2011 DIBP granted the visa applicant a temporary subclass 820 visa to the visa applicant on 17 February 2012. 

23. On 17/06/2013 DIBP received information that indicated the relationship had failed over 18 months ago (January 2012) and that the parties were pretending that the relationship was still ongoing to achieve a permanent migration outcome for the visa applicant.  On 15 July 2013 the delegate contacted the visa applicant by telephone about this information; she has recorded the visa applicant as stating that he was no longer in a relationship with his sponsor and that he would get his new registered migration agent to contact the delegate.  On 19 July 2013 the delegate wrote to the visa applicant seeking information or comments about this information.  A reminder letter was also sent to the visa applicant 23 August 2013.

24. No further contact was made by the visa applicant with DIBP and on 4 September 2013 the delegate refused to grant the visa.

25. On 11 September 2013 the visa applicant appealed to the MRT.  A submission[6] dated 29/05/2014, along with various documents, was provided to the tribunal around June 2014.  In the submission the visa applicant said he was previously seeking to be sponsored for a Contributory Parent visa by his daughter.  However these visas cost around $50K and the sponsor suggested the he stay in Australia on the basis of their de facto relationship.  The submission goes on to state that the visa applicant deposited $40k in their joint bank account in March 2011 after the sale of his property.  He also states he gave full control to his sponsor to access funds and he transferred funds to pay off his sponsor’s mortgage and a debt of her daughter.  Aside from also helping his sponsor to renovate her house, he estimates his contribution to the relationship was $60,000 over a 12 month period. 

    [6] At FF: 98-99 (AAT 1313408)

26. This final point implies that the relationship (or at least the claimed financial abuse period) went for 12 months.  If the relationship began on 23 March 2010 (as the visa applicant and sponsor claimed in their application forms) this would mean that it would end around the time the visa applicant claims he deposited $40,000 to their joint account in March 2011.  However by deduction of all of the evidence, the perceived cessation of this relationship appears to be around March 2012.  The dob-in information received by DIBP in June 2013 indicated that the relationship ceased around January 2012 as discussed at paragraph 24 above.  Whereas, of the approximately 25 character references submitted by the visa applicant, only one refers to his relationship with his sponsor[7].  This reference is written by a couple and is dated 21 May 2014[8], they also indicate that the relationship has ceased about 18 months before writing the declaration; this means by this account it ended around November 2012.  Perhaps the most accurate date of the end of the relationship is provided by the visa applicant himself.  The submission also included a Form 1410 that sets out the ‘Statutory declaration for family violence claim’[9] made by the visa applicant.  In this form the visa applicant stated at Question 4 (When do you consider your relationship with your partner ended?) – Relationship ended in April 2012.  This date is not in serious conflict with any of the other evidence discussed above and in the absence of further submissions from the visa applicant the tribunal accepts that, if the relationship existed, it had ceased by this time.

    [7] At F: 129 (AAT 1313408)

    [8] At F: 129 (AAT 1313408)

    [9] At FF: 130-132 (AAT 1313408)

27. However, the tribunal found it curious that despite the relationship ceasing in April 2012 the visa applicant claims he continued to live with the sponsor.  Also in response to Question 4 he stated; I continued to live with Jan until Sept/Oct 2012 with a view to financially support her so she got on her feet.    

28. While I acknowledge that it is commonplace for abuse victims to remain in abusive situations after a relationship may have ended, I do not consider that the visa applicant stayed in this situation on an involuntary basis.   I also note the visa applicant made no efforts to deal with the claimed abuse by seeking professional help or seeking financial restitution of the funds he claims to have had misappropriated by the sponsor.  He also did not advise DIBP that the relationship had ended.

29. In the submission the visa applicant provided copies of 2 transfers of funds from dates preceding the above period.  The transfers are as follows:

    ·     Transfer from the visa applicant to the personal account of the sponsor in the sum of $4,827 dated 09/04/2010.  The Details of Payment are; REASON LIVING EXPENSES.

    ·     Transfer from the visa applicant to the personal account of the sponsor in the sum of $1,253.60 dated 27/01/2011.  The Details of Payment are; REF AND REASON MORTGAGE.

30. I note that both of these payments were made before the relevant period (as discussed below) when the visa applicant claims that the financial abuse took place.  In the visa application forms the parties stated that the relationship began in January 2010 and that they committed to the relationship on 23 March 2010.  They initially met because the visa applicant responded to a lodging advertisement and claims he initially rented accommodation from the sponsor for $190/week.  The visa applicant also left for Spain on the same day as he claims they committed to the relationship and returned to Australia on 02/07/2010.  I note that the first transfer presented by the visa applicant was made on 09/04/2010; this is two weeks after the visa applicant claims he went to Spain for 15 weeks.  I also note that by the time the visa applicant returned from Spain he had occupied what were initially lodgings at the sponsor’s house for approximately 26 weeks; rent of $190/week for that period results in a grand sum of $4,940, this amount is close to the sum that was actually transferred to the sponsor by the visa applicant when he first went overseas on 09/04/2010.           

31. At the hearing it was established that the parties started their joint bank account in March 2011.  The annotated banking statements[10] contained in the post hearing submissions to the tribunal presumably also reflect the period when the visa applicant perceives that the relationship was still ongoing and that the visa applicant now perceives he was the victim of family violence.  The statements provided are for the visa applicant and sponsor’s joint bank account and cover the period; 09/03/2011 – 09/03/2012 (the relevant period).

    [10] At FF: 134 -138 (AAT 1313408)

32. I note that this joint account was opened on 21 March 2011 with a credit of $40,000 from the sponsor’s bank account.  The visa applicant claims this was his money but has not provided any evidence to establish the direct transfer of these funds was from his personal bank account.  However, I note that the sponsor’s personal banking records (as provided to DIBP[11]) show that she received $67,478.40 into her account on 10 March 2011.  This entry[12] is annotated, monies for sale of property, and I am satisfied it represents funds deposited by the visa applicant to the sponsor’s personal bank account.  I also note that the transfer of $40,000 to open the joint bank account corresponds to a withdrawal of the same from the sponsor’s personal bank account on 21/03/2011.   

    [11] At FF: 225 – 226 (AAT 1313408)

    [12] At F: 241 (AAT 1313408)

33. Indeed in all of the documentary evidence provide by the visa applicant there is no individual financial information of the visa applicant’s that has been provided to DIBP or the tribunal that shows where these funds have been transferred from a personal account of the visa applicant.  However I acknowledge that he did provide statements from a personal British ‘first direct account’ for the period 09/10/2010 – 08/04/2011.  This account shows regular monthly deposits of £425.28 and direct debits of £200.00.  

34. The annotated bank statements from the relevant period certainly do demonstrate frequent transfers of varied sums of money to the sponsor’s bank account.  In a post hearing submission to the tribunal[13] the visa applicant estimated that 70% of the withdrawals were made to the sponsor’s personal account.  I concur with this estimate but note there is no convincing evidence before me that these monies were not subsequently used to benefit or partially benefit the visa applicant.        

    [13] At F: 142 (AAT 1313408)

35. The visa applicant said that he ended the relationship when he realised that his sponsor had been withdrawing funds from their joint bank account for her own purposes and not contributing to the bank account herself.  However he claims he continued to support (and live with) the sponsor after the relationship had ended in April 2012 for a further 6 months by assisting her with mortgage payments, he claims he continued to live at the sponsor’s property during this period.  The visa applicant said he did not advise DIBP that the relationship had ended because he thought it was best to continue working and being a good person because this would be to his benefit.  In contrast, he went on at the hearing and said that he had only recently realised that he was made use of by the sponsor and had suffered family violence due to her alleged conduct towards the visa applicant’s property (his finances).         

    The non-judicially determined family violence claim:

36. The day before the hearing the visa applicant provided a statutory declaration for family violence claim (Form 1410) dated 31/05/2014.[14] 

    [14] At FF: 130 – 132 (AAT 1313408)

37. The tribunal member advised the visa applicant that the family violence claim was improperly made.  They said that it did not contain declarations from two treating health professionals as required by the legislation.  The visa applicant said that he intended to provide a report by his treating doctor but was not able to provide this before the hearing.  The tribunal member then pointed out to the visa applicant that he had appointed his registered migration agent in September 2013, more than 9 months before the hearing.  Nevertheless, the tribunal member allowed the visa applicant 14 days to provide declarations by health professionals concerning his alleged suffered family violence committed by his ex-sponsor.       

38. The special provisions relating to family violence are set out in Division 1.5 of the Regulations. Reg.1.23(9)(c) requires that the visa applicant (alleged victim) present evidence in accordance with Reg.1.24.

39. Reg.1.24 states that:

    The evidence mentioned in paragraph 1.23(9)(c)

    (a)  a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and 

    (b)  the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.    

40. The visa applicant satisfied Reg.1.24(a) when they provided their statutory declaration (identified at paragraph 36 above) the day before the hearing. 

41. On 19/06 the visa applicant, seeking to satisfy Reg.1.24(b), provided; along with the annotated bank statements (discussed above), declarations made by two health professionals concerning the alleged family violence suffered by the visa applicant.

42. I am of the view that the statutory declarations provided by the health professionals do not meet the requirements of the relevant instrument (IMMI 12/116). 

43. The statutory declarations are made by an accredited social worker and a registered psychologist and are made on 13 & 17 June 2014 respectively.  The social worker states that his statutory declaration is based on his reading of the evidence and an interview with the visa applicant.  Whereas the Psychologist’s statutory declaration states that their assessment of the visa applicant is based on an interview with the visa applicant.  Based on the content and timing of both statutory declarations I am satisfied that the visa applicant attended appointments with both health professionals at the behest of their registered migration agent for the purpose of obtaining favourable statutory declarations in respect of his allegation.  In both cases appointments were made with the health professionals after the hearing and more than 2 years after the visa applicant claims that the relationship ended.

44. In Schedule 1 of IMMI 12/116 it is required that a statutory declaration from a social worker is made by a person; who has provided counselling or assistance to the alleged victim while performing the duties of a social worker.  There is no evidence before me that the social worker provided counselling or assistance to the visa applicant in respect of this allegation.  

1. In Schedule 1 of IMMI 12/116 it is required that a statutory declaration from a psychologist is made by a person; who has treated the alleged victim while performing the duties of a psychologist.  There is no evidence before me that the psychologist treated the visa applicant while performing the duties of a psychologist in respect of this allegation.

2. In the fact similar case of Dang v Minister for Immigration [2016] FCCA 1426, McNab J considered the specification of evidentiary requirements in this instrument. In that case the visa applicant sought to satisfy Reg.1.24(b) by providing statutory declarations from a social worker and psychologist that had been obtained shortly before the tribunal hearing and the statutory declarations did not indicate that the social worker had provided counselling or assistance to the alleged victim or that the psychologist had treated the alleged victim while performing their duties.

3. In respect to the psychologist, at [29], the Court stated:

   It is apparent that, in the case of a psychologist, the treatment of the alleged victim is required while performing the duties of a psychologist.  If the evidentiary requirements were satisfied simply by a statutory declaration made by a registered psychologist, who is a non-treating psychologist, the words in relation to treatment would be otiose.

4. In that case, the Court then went on to conclude that the tribunal was correct in the following finding:

   … for a statutory declaration by a psychologist or a social worker to meet the requirements of IMMI 12/116 the relationship between the Applicant and the psychologist or social worker must have been essentially a therapeutic one… . 

5. For the reasons set out above I am not satisfied that the statutory declarations provided by the visa applicant meet the requirements of Reg.1.24(b) because the relationship of the health professionals with the visa applicant were not essentially therapeutic ones.        

6. Therefore, the applicant does not meet cl.801.221(6).

7. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2), (2A), (3), (4) (5) or (8).

8. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa because they cannot satisfy cl.801.221.

   DECISION

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

   Ian Garnham

   
   

   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).