Dumaraos (Migration)

[2022] AATA 4641

Dumaraos (Migration) [2022] AATA 4641 (6 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Zhenith Bohol Dumaraos

REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)

CASE NUMBER:  2116053

HOME AFFAIRS REFERENCE(S):          BCC2015/968215

MEMBER:Kira Raif

DATE:6 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl 820.221(3) of Schedule 2 to the Regulations

Statement made on 06 December 2022 at 12:00pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Circuit Court remittal – relationship ceased – genuine and continuing relationship before family violence – Court issued family violence order – financial reliance on the sponsor – shared responsibility for the applicant’s son – shared housework – joint social activities – decision under review remitted

LEGISLATION

Family Law Act 1975
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.21, 1.23

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of the Philippines, born in October 1986. She made the application for the visa on 27 March 2015 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. In June 2017 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of that decision and in November 2021 the court remitted the matter to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 6 December 2022 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence.

6. Under reg 1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in reg 1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14).

7. In the present case the applicant is seeking to establish family violence on the basis of evidence tested before a Court. Acceptable forms of court tested evidence as set out in reg 1.23, are: a court injunction under the Family Law Act 1975; an Australian Court order for the protection of the alleged victim; or a conviction or finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim. Where such evidence is provided, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence: reg 1.23(1).

   Allegation

8. The Department of Immigration received allegations concerning the applicant’s relationship with the sponsor. The allegations stated that the applicant had told others that she was with someone for immigration purposes and was in Australia to work and support her family in the Philippines. The allegation stated that the applicant previously attempted to gain entry to Australia to facilitate human trafficking and when the plan failed, she obtained a new ‘phony husband’ to travel to Australia. The allegation stated that the applicant worked as a stripper in Australia and that she gained entry to Australia to further a prostitution ring.

9. The Tribunal put these matters to the applicant pursuant to s. 359A of the Act. In response, the applicant stated, essentially, that her identity had been fraudulently used by scammers without her consent. The applicant provided her AFP certificate (showing no disclosable outcomes). The applicant denied that she was in a relationship for migration purposes. The applicant states that she met the sponsor on a dating site in early 2013 while living in Denmark and when she came to Australia on a holiday to visit her boyfriend, she discovered his infidelity and left Australia after only three weeks. She did not meet the sponsor in person during that trip. When she returned to Denmark, she discovered she was pregnant and tried to end the communication with the sponsor but he persisted. She and the sponsor first met in person in August 2013 and they fell in love and the sponsor travelled to the Philippines and accepted her son as his own child. Once the child was born, the sponsor developed a strong bond with the child and was the only father known to the child. The applicant states that she married the sponsor because they genuinely loved each other. The relationship broke down and they divorced in 2017. The applicant states that she then formed a relationship with another person who proposed marriage but the relationship did not work. She married another person in March 2018 but she soon discovered he was gay and the relationship did not last long. The divorce was finalised in November 2019. She then started dating another person in July 2018 and they started a de facto relationship in and their daughter was born in March 2020 and the relationship continues to date. The applicant states that none of these relationships were entered for migration purposes and she could have stayed in the relationship with the sponsor to obtain permanent residence if that was her purpose.

10. The applicant also denies that she is only in Australia to support her family in the Philippines. She states that she came from a well-off family in the Philippines and the only funds she sends to the Philippines is to support her son.

11. The applicant acknowledges her employment as a stripper and a part-time model. She states that since her ‘sexy photos’ are available online, other escort service companies and prostitution businesses had been illegally using her photos without her consent.

12. The applicant also denies that she was ever involved in human trafficking. She states that  she travelled to Australia to be with her then boyfriend and later to be with the sponsor.

13. The applicant denies that she failed to mention her child in the visa application, noting that she did mention her child in the Partner visa application and had not made other visa applications. The applicant states that her previous boyfriend is the father of the child. The applicant denied getting a ‘phony husband’ and a Fiancé visa, stating that she has never held a fiancé visa.

14. In oral evidence, the applicant also denied she was in Australia to create a “prostitution ring”, stating she has had no issues with the police in Australia or in any other country. She states that she has never done anything illegal or wrong.

15. The Tribunal is mindful that the evidence relating to the applicant’s motivations and her alleged activities comes from an allegation and it is entirely plausible that the allegation was made out of spite and that it does not necessarily reflect the applicant’s true circumstances.

    Has the applicant experienced family violence?

16. The applicant claims that she has experienced family violence perpetrated by the sponsor. The applicant obtained a final AVO issued by the NSW Local Court in June 2016. The Tribunal is satisfied that a court order was made against the sponsor for the protection of the applicant in relation to violence that occurred whilst the parties claimed to have been in the relationship, after the sponsor had an opportunity to be heard or otherwise make submissions to the Court.

    Did the family violence occur during the relationship?

17. The applicant’s evidence is that she met the sponsor online on a dating site. She travelled to Australia to see her then boyfriend but she soon realised that he was seeing someone else. She continued talking to Christian and when she realised she was pregnant, she suggested to him he should see others but he wanted to continue the relationship. He had other children so he was happy to support her and continue the relationship despite her pregnancy.

18. The applicant states that she travelled to Australia and met the sponsor in August 2013. After arriving in Australia she lived with the sponsor’s mother at her home. She also met the sponsor’s children during her initial. After she left Australia, the sponsor visited her several times and he supported her during the pregnancy. When the child was born, they put the sponsor’s name on the birth certificate because he wanted to treat the child as his. The applicant states that the authorities in the Philippines did not ask whether he was the biological father of the child.

19. The applicant states that after she returned to Australia, they were living at the place owned by the sponsor’s mother. Before she was given the permission to work, she was responsible for most of the housework. At that time she relied on her husband for financial support. After she was given permission to work, she started working in a nearby café and providing support to her child. Her husband also contributed to her son’s expenses when there were additional costs. She and the sponsor spoke to her son almost daily.

20. The applicant states that she met the sponsor’s work colleagues and attended his company events. She also socialised with his mother and sister and together they visited her Filipino friends. The applicant states that her mother also supported the relationship as she and the sponsor came from a similar background and had a lot in common.

21. The applicant described the reasons the relationship ended, stating the sponsor used to drink and was violent towards her. She states that when she called the police, the police would not even talk to her. The applicant claims these problems started after the marriage and before the marriage the sponsor was a caring and supportive person. At the end of 2015 she moved out from the family home. At that time she had found a good job in a car dealership, had new friends and had a new life in Australia and so decided to remain in Australia. She had other relationships since that time.

22. With respect to the allegations, the applicant confirmed that she did work in a gentleman’s club after her relationship with the sponsor broke down but she claims she was never involved in sex work. The applicant denied that she married the sponsor for the visa.

23. With respect to the information the applicant gave about the paternity of her son, the applicant told the Tribunal that the sponsor was mentioned on the child birth certificate and it was him who suggested he should be identified as the father of her child. The applicant states that she relied on the sponsor’s advice when providing information to Immigration.

24. If the applicant did claim that the sponsor was the biological father of the child, the Tribunal would not consider her claimed reliance on the sponsor to justify the provision of misleading information. In the Tribunal’s view, the applicant was an independent adult and was capable of making her own decisions about the provision of information. However, it is not apparent that in this case, the applicant claimed the sponsor was the biological father of her child (as opposed to a father, or a person with a parental responsibility toward the child). It is well established that a parent – child relationship referred to in the Migration Act and Regulations is not limited to biological relationships. Thus, the nomination of the sponsor as the child‘s father on the child’s birth certificate and any representation to the Department that the sponsor is the father of the child is not necessarily misleading. The Tribunal is also mindful that even if the applicant did intentionally mislead the Department about the paternity of the child, and if she is found to be not a person of credibility, that does not necessarily mean her relationship with the sponsor was not a genuine spousal relationship.

25. The applicant denies that she entered into the relationship with the view of obtaining the Australian visa. She states that if she wanted the visa, she could have stayed with the sponsor until the grant of the permanent visa, or she could have remained in the subsequent relationship but she has not done that. The Tribunal is of the view that it was part of the applicant’s motivation for entering marriage with the sponsor to gain the Australian residence (noting that she appears to have been seeking relationships with Australian men and did not depart Australia after the relationship with the sponsor broke down) but the Tribunal acknowledges that a desire to remain in Australia is not inconsistent with the existence of a genuine spousal relationship.

26. Overall, the Tribunal shares some of the concerns expressed by the delegate and the previous Tribunal. However, on balance, the Tribunal has determined that the applicant did have a genuine relationship with the sponsor before it broke down. In reaching this conclusion, the Tribunal places weight on the following factors. The Tribunal accepts that after her entry to Australia the applicant lived with the sponsor’s at his mother’s home and that they shared the housework. The Tribunal also accepts that the sponsor had contributed, to some extent, to the upbringing of the applicant’s child. the Tribunal accepts that initially, the applicant was reliant on the sponsor for financial support and later when she had her own income, there was some degree of pooling of resources. The Tribunal accepts the submission of the applicant’s representative that because the couple lived in the family home, which was owned by the sponsor’s mother, there was very limited documentary evidence of the various aspects of the relationship. The Tribunal accepts that the applicant and sponsor planned and undertook joint social activities and the Tribunal acknowledges multiple statements from third parties expressing their belief that the relationship is a genuine one. The Tribunal is prepared to accept that, at least for a period of time, there was  a mutual commitment to the relationship and that at the time, both the applicant and the sponsor viewed it as a long term one. The Tribunal acknowledges that the law does not require that commitment to be equal but merely mutual.

27. On balance, the Tribunal accepts that when the application was made, the applicant and the sponsor had a mutual commitment as husband and wife to the exclusion of all others. The Tribunal has also formed the view that the family violence occurred during the relationship. The Tribunal finds that family violence is taken to have occurred under reg 1.23 of the Regulations.

    Conclusion

28. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl 820.221(3). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    decision

29. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl 820.221(3) of Schedule 2 to the Regulations

    Kira Raif
    Senior Member