Da Silva Araujo (Migration) - [2023] AATA 3077

Da Silva Araujo (Migration) [2023] AATA 3077 (22 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Kerlen Da Silva Araujo
REPRESENTATIVE:  Mr Nigel James Dobbie
CASE NUMBER:  1830676
HOME AFFAIRS REFERENCE(S):          CLF2014/41268 CLF2018/359196
MEMBER:Moira Brophy
DATE:22 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 22 September 2023 at 11:35am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – relationship ceased – genuine prior partner relationship – allegation of family violence – applicant left Australia – joint account with limited transactions – shared residence – separate international travel – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 801.221; r 1.09
CASES
Guven v MIMA [2006] FMCA 311
He v MIBP [2017] FCAFC 206
Liu v MHA [2019] FCA 1925
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 October 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 14 March 2014 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 (Cth) (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.
A subclass 820 visa was granted on 20 May 2015.
On 25 January 2016, the Department wrote to the applicant requesting further information for the consideration of the subclass 801 visa. The sponsor contacted the Department and requested an extension of time to provide the requested information, as he said the applicant was in Brazil. A response was received on 22 August 2016.
A telephone interview was conducted with the sponsor on 30 July 2018.
A natural justice letter was sent on 30 July 2018 along with a request for further documentation. A response to the natural justice letter was received on 3 August 2018 and a response to the request for further documentation was received on 28 August 2018.
On 2 October 2018, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221 because he was not satisfied the parties continued to be in a genuine and continuing relationship.
The applicant sought review of the delegate's decision. A copy of the delegate’s decision was provided to the Tribunal.
On 19 October 2018, the applicant advised the Tribunal that the relationship had broken down and she had been the victim of family violence.
The applicant appeared before the Tribunal by way of a telephone hearing on 13 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages. At that time, the Tribunal discussed with the parties the need for the hearing to be an in person hearing. The applicant indicated she was in Brazil and not able to re-enter Australia as the visa had expired. The Tribunal discussed whether a video hearing could be arranged and adjourned the hearing to allow that to be arranged. The resumption of the adjourned hearing was set down for 5 September 2023. The applicant did not respond to the invitation to hearing. At the time of hearing, there was no appearance from the applicant.
The Tribunal has determined to decide the matter on the material before it.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born on 10 November 1977 in Brazil. The applicant was previously in a defacto relationship with Cleso Fenini from 15 June 1993 to 20 November 2010. Her mother, five sisters and one brother reside in Brazil.
The applicant first came to Australia on 20 February 2007 as the holder of a Student (subclass 570) visa. She was granted a Student (subclass 572) visa on 23 April 2009 and she departed and re-entered Australia on Student visas a number of times in the following years. On 14 March 2014, she lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) and a Partner (Residence) (Class BS) (Subclass 801) visa on the grounds of being in a spousal relationship with an Australian citizen, Mr Jonathon Gabriel Tapp, who lodged a sponsorship in support of the application. The sponsor was born on 25 January 1975 in Australia.
At the time of application, the parties stated they met on 11 February 2012 at a pub in Bondi. They commenced a de facto relationship on 20 February 2012. They committed to a long-term relationship to the exclusion of all others on 8 January 2013 and the applicant moved in to live at the sponsor’s apartment. They registered their relationship with NSW Registry of Births Deaths and Marriages on 9 April 2014.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims that the relationship with her sponsor has ceased, and she has been the victim of family violence.
In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the time of the fist hearing.
There is no dispute and the Tribunal accepts that the applicant was not, at the time of the Tribunal’s decision, the de facto partner of the sponsor. It was not disputed that the relationship had broken down. The applicant therefore does not meet the criteria in cl 801.221(2)(c). The applicant has claimed that she meets the criteria in cl 801.221(6)(c)(i) which states as follows:
(6)An applicant meets the requirements of this subclause if:
(a)   the applicant is the holder of a Subclass 820 visa; and
(b)   the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
(c)   either or both of the following circumstances applies:
(i)either or both of the following:
(A)the applicant;
(B)a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
The applicant claims that she meets these criteria on the basis that she was in a genuine and continuing relationship with the sponsor, the relationship between herself and the sponsor has ceased and that she has suffered family violence committed by him.
The provisions of cl 801.221(6) indicate that a relevant genuine partner relationship within the meaning of the Act must have existed prior to the relationship ceasing, and the applicant would have otherwise met the criteria in cl 801.221(2). This means that, while any claims of family violence do not have to cause the cessation of the relationship, any relationship which has ceased must have been one which would have otherwise met the requirements of the relevant legislation.
This approach was approved in the matter of Guven v MIMA [2006] FMCA 311 (Hartnett FM, 24 March 2006) at [22]-[26]. In that case, Harnett FM found that when considering the grant of a Subclass 100 Spouse (Residence) visa, it was open for the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a genuine relationship within the meaning of the Regulations and only where it found that such a relationship existed was it required to make a further finding in relation to claims of domestic violence (as it was then described). This approach was further considered in the matter of Liu v MHA [2019] FCA 1925 where the FCA agreed with the primary judge’s reasoning that cl 801.221(6) could not be satisfied if there was never a genuine and continuing relationship at [19], [21] and [22].
Accordingly, before assessing whether the applicant has suffered relevant family violence, the Tribunal must assess whether at the time of the claimed family violence, the applicant and the sponsor were in a genuine and continuing relationship within the meaning given to it in the Regulations.
The Tribunal was mindful that the applicant has provided to the Tribunal a Final Order Apprehended Domestic Violence Order dated 31 January 2018, a NSW Police Facts Sheet dated 21 January 2018 and a Court Order Notice, Local Court, Sutherland, NSW dated 8 March 2018. These documents were not provided to the delegate who made his decision on 2 October 2018, despite the orders having been made some months prior to his decision. The Tribunal has further considered this information in the context of the delegate requesting an interview with the sponsor on 23 July 2018 and that interview taking place on 30 July 2018. Following that interview with the sponsor, a natural justice letter was sent to the applicant on 30 July 2018 as well as a request for further documentation. A response to the natural justice letter was received on 3 August 2018 and further documentation was received on 28 August 2018.
At the time of the first hearing, the Tribunal discussed with the representative that in the context as outlined above, the crucial issue was whether the parties had been in a genuine and continuing relationship prior to the judicially determined claim of family violence and if so, when did that relationship cease. The Tribunal considered that to make findings on that issue the applicant would need to attend a hearing to give evidence. Given the applicant was in Brazil and was not able to re-enter Australia as her visa had lapsed, the Tribunal considered that to afford the applicant procedural fairness, the preferred mode of hearing for the subsequent hearing would be a video hearing. No objection was raised to that proposed course.
At the time of the second hearing, the representative indicated he had been unable to contact the applicant to take instructions and was therefore not in a position to make submissions.
At the conclusion of the second hearing, the Tribunal indicated it would allow the representative to make submissions for a further seven days if he were able to make contact with the applicant.
At the conclusion of the period allowed (12 September 2023), the Tribunal had not received any submissions.
Whether the parties are in a spouse or de facto relationship
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. In the present case, the applicant claims to be the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.
Are the parties in a de facto relationship?
‘De facto partner' is defined in s 5CB of the Act, which provides that 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).
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 of the relationship, the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Financial
In relation to the financial aspects of the relationship, the Tribunal has considered the evidence including the joint ownership of real estate or other major assets, joint liabilities, the pooling of financial resources and any legal obligations owed by one party to the other and any sharing of day-to-day household expenses.
From statements provided to the Department for the joint account, it appeared the joint account had been used in 2015. There was evidence of expenses such as the internet, Medibank, utility bills and other day-to-day expenses being met from that account. For the period from 16 February 2016 to 18 June 2016, it appeared from statements the account was not used. In the period from 26 December 2017 to 23 June 2018, there were deposits made into the account in random amounts. There was one payment in the six-month period labelled rent which was not for an amount reflective of the amount the applicant had stated to the Department she transferred for her half of the rent. There was no evidence of shared or every day expenditure being met out of that account from February 2016.
There was a paucity of evidence to make findings the parties had any joint ownership of assets or any joint liabilities. There was no evidence either party owed the other party any legal obligations.
On the evidence available, the Tribunal was not able to make findings that the financial aspects of the parties’ relationship were indicative at any time after February 2016 of their being in a spousal relationship.
Nature of the household
The Tribunal accepts from the evidence provided that the parties resided at the same address from January 2013 until January 2018, except for the period the applicant was in Brazil from 26 May 2015 to 27 May 2016. There is no persuasive evidence to support a finding they resided at the same address beyond that time.
The Tribunal accepts from the Police Facts Sheet provided at the time of the application for review that the police attended the unit where they state the parties both resided on 21 January 2018.
The crucial issue is whether they resided together as de facto partners as defined in s 5CB of the Act, or as two individuals who for a time, shared premises.
The applicant and the sponsor have never had any joint responsibility for the care and support of children.
The Tribunal notes the Police Facts Sheet refers to the victim (applicant in these proceedings) ‘going upstairs to her bedroom’. In another place the Police Facts Sheet refers to their being in ‘their’ unit. The Tribunal considers it a reasonable inference that ‘her’ bedroom was separate from ‘their’ living spaces.
At the time of application, the parties claimed that the applicant does the household chores, and that the applicant loved cooking.
On the evidence before it, the Tribunal is satisfied that the applicant and her sponsor shared premises as two individuals but is not satisfied they resided together as de facto partners in a continuing relationship.
Social aspects of the relationship
The Tribunal considered the social aspects of the relationship – including whether the 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.
At the time of application, the applicant provided some photographs of the parties socialising together and with members of the sponsor’s family in the period from 2013 to 2016. An invoice for travel to Bali together in 2013 was provided.
The Tribunal considered the evidence the applicant was outside Australia in the period from 26 May 2015 to 27 May 2016 and the sponsor’s travel records indicate he went overseas on four occasions during that period. The sponsor did not travel to Brazil during this period. The Tribunal was mindful that at the time of the natural justice letter sent by the Department to the applicant and the response dated 3 August 2018, the applicant indicated she had not been aware of the sponsor’s travels. Skype messages provided for the period the applicant was in Brazil show the parties were in regular contact. The Tribunal has taken this into consideration.
At the time the department was assessing the permanent visa application the applicant provided two form 888 statements. Both were dated 26 August 2018. One statement was from Corrine Michelle Tapp, sister of the sponsor who stated she saw the applicant on a daily basis and they are very close. She opined the relationship to be both genuine and continuing. Another statement was from Jamie Robert Gibbs, a close friend of the sponsor. Neither statement made any mention of the fact there was an apprehended violence order in place to protect the applicant. Given this, the Tribunal has attached limited weight to these statements.
On the evidence before it, the Tribunal is satisfied that the applicant and the sponsor previously socialised together with family and some friends but the Tribunal is not satisfied they represented themselves generally as a couple in a genuine and continuing relationship after the applicant returned from Brazil in May 2016.
Nature of parties’ commitment to each other
In considering this aspect of the relationship, the Tribunal considered the evidence as to the duration of the relationship; the length of time the parties have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
The Tribunal finds that there is no evidence that the applicant and her sponsor provide companionship and emotional support to each other or that they see the relationship as long-term.
The Tribunal has considered this evidence cumulatively and finds it is not indicative of parties who draw companionship and emotional support from each other. The Tribunal finds on the evidence and the conduct of the applicant in choosing to live in Brazil for large periods of time in 2015 and 2016, and of the sponsor not visiting her during that time despite the fact he travelled out of Australia on four occasions, that the applicant and the sponsor’s conduct was not consistent with their being committed to the relationship. The Tribunal has found this to be persuasive evidence that while there was evidence of a friendship between the parties, at no time after 2016 were the parties committed to their relationship with each other.
The evidence submitted by the applicant to support the family violence claim does not persuade the Tribunal that the applicant and the sponsor were in a in a genuine and continuing de facto relationship in January 2018.
The Tribunal ultimately is not satisfied that the applicant was in a genuine and continuing relationship for the duration of time she has claimed. The Tribunal, whilst acknowledging the parties were known to each other and for a time shared an address for some purposes, is not satisfied that the parties lived together for the duration of time claimed, or that they presented socially to family and friends as a couple in an ongoing relationship beyond 2016. The evidence was of a relationship that was characterised by a lack of trust and commitment on the part of the applicant and the sponsor. There is little independent evidence of any commitment to the relationship by either party. The Tribunal is not prepared to accept that the applicant and the sponsor provided one another with emotional support or that they saw the relationship as long-term.
Given the alleged significant history of the claimed relationship, the Tribunal is concerned that the lack of evidence before it speaks to the genuineness of the applicant’s claims that she was in a long-term genuine and continuing relationship with the sponsor. The Tribunal considers the paucity of corroborative evidence in support of the claimed relationship speaks to its genuineness.

Given all the above, and notwithstanding the various documents such as statements from friends, bank statements, photos etc., the Tribunal has ultimately, not been satisfied by the applicant that she and her sponsor had a mutual commitment to a shared life as partners to the exclusion of all others.
The Tribunal has also not been satisfied by the applicant that the applicant and sponsor’s claimed relationship was genuine and continuing after the applicant returned from Brazil in May 2016.
On the basis of all the above, the Tribunal is not satisfied that the requirements of s 5F(2) are met at any time after May 2016.
CONCLUSIONS
Given the above findings, the Tribunal is not satisfied that the applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship was genuine and continuing after May 2016. The Tribunal accepts that the parties for a time shared premises but the Tribunal is not satisfied that the applicant and sponsor lived together as a couple in a genuine and continuing relationship after May 2016. The Tribunal therefore finds that the applicant does not meet the definition of ‘spouse’ in s.5F(2)(b)-(d).
Therefore the Tribunal is not satisfied that the applicant meets cl.801.221(2)(c) at any time after May 2016.
As is indicated above, in order to rely upon a claim that the applicant satisfies the criteria in cl.801.221(6), the applicant must show that she would meet the requirements of cl.801.221(2), including the requirement of being the spouse of the sponsor, except that the relationship has ceased. As the Tribunal has found that the applicant and the sponsor were not in a spousal relationship as defined in s.5F of the Act after May 2016, the applicant does not meet the criteria in cl.801.221(2) and it is not necessary to assess the claim of family violence.
There is no evidence to indicate the applicant meets the alternative criteria contained in cl.801.221.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Moira Brophy
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).