Kabike (Migration)

[2018] AATA 3875

Kabike (Migration) [2018] AATA 3875 (10 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Natsai Kabike

CASE NUMBER:  1700316

DIBP REFERENCE(S):  CLF2013/145166

MEMBER:Adrienne Millbank

DATE:10 August 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 10 August 2018 at 5:27pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – genuine de facto relationship – lived separately – family violence claims – sponsor’s marital status for Centrelink benefits – limited communication – time spent together – sponsor in another relationship – ignorance of sponsor’s personal life – claim of youthful innocence – applicant’s cultural influence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cl 801.221, 802.221

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 20 December 2016 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 was born in Zimbabwe in 1990 and was 27 years old at the time of decision. She first arrived in Australia on 15 April 2010 on a temporary work (Subclass 457) visa. She applied for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa on 27 June 2013 on the basis of her relationship with her sponsor, an Australian permanent resident. She was granted a Partner (Temporary) (Subclass 820) visa on 24 July 2014.

3. At the time of application, 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). Relevantly to this matter the primary criteria include cl.801.221(2)(c) and 802.221(6)(c).

4. The Delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2)(c) because the Delegate was not satisfied that the applicant was in an exclusive de facto relationship with her sponsor at the time the Department assessed the permanent partner visa application. The parties had lived in different cities, Melbourne and Brisbane, since March 2013, before the grant of the Partner (Temporary) (Subclass 820) visa, and information obtained by the Department showed that the sponsor was engaged to marry another person.

5. The Tribunal scheduled a hearing for 10 May 2018. On 2 May 2018 the Tribunal received an email from the applicant requesting a postponement, for the reason that the applicant needed time to gather the documents needed to lodge a non-judicially determined claim to have suffered family violence at the hands of the sponsor. Regarding her claim to have suffered family violence, the applicant stated:

   I am aware that this information was unknown to you. I sought legal advice and I have just recently woken up and got to see that there were things I didn’t understand that were happening in my relationship that were unhealthy. …  I wasn’t aware that I could bring this information forward to the immigration department. … I would like to gather professional opinions regarding what I now understand to be abuse. … I hope you can give me an extension of around 2-3 weeks.

6. The Tribunal agreed to the applicant’s request for a postponement.

7. The applicant appeared before the Tribunal on 19 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, as supporting witness.

8. The Tribunal advised the applicant that it needed to be satisfied that the parties were in a genuine de facto relationship before considering whether it was satisfied that the applicant had in fact suffered relevant family violence. 

9. The Tribunal further advised the applicant, pursuant to s.359AA of the Act, that it had information that would be the reason or part of the reason for confirming the decision, and that this information comprised: the Delegate’s record of decision, a copy of which was not provided to the Tribunal prior to the hearing; print-outs from each of the parties’ Facebook pages since 2012 that indicated that they were not in a de facto relationship after the sponsor moved to Melbourne in 2013, and showed that in 2016 the sponsor was in a relationship with, and became engaged to, another person; a transcript of the interview conducted by the Department with the applicant on 12 December 2016, at the time of assessment of her Partner (Residence) (Class BS) (Subclass 801) visa application, where she displayed ignorance about the personal details and life of the sponsor, suggesting that she and the sponsor were not in a de facto relationship and had not been for some time; and information from Centrelink showing that the sponsor gave his relationship status as ‘single’ when in receipt of Austudy benefits from 2013, which, again, suggested that the parties were not in a de facto relationship from the time the sponsor moved to Melbourne.

10. The applicant was advised that the information was relevant because it indicated to the Tribunal that she and her sponsor might not have been in a genuine de facto relationship from March 2013 and at the time she was granted a Partner (Temporary) (Class UK) (Subclass 820) visa, on 24 July 2014. As noted, the Tribunal advised the applicant that it needed to be satisfied that she and her sponsor were in a genuine relationship before it considered her claim to have suffered from family violence, and the consequence of relying on the information would be that the Tribunal could decide that she and the sponsor were not in a genuine relationship, and affirm the decision under review.

11. The applicant was invited to comment on this information and advised that she could seek an adjournment and consult with her representative when questions were asked or issues raised based on any of this information. The applicant did not seek an adjournment.

12. The applicant was further advised that the Tribunal had serious concerns regarding the credibility of the applicant and the sponsor, arising from written statements and statutory declarations they provided in March 2014, July 2016 and September 2016 that appeared to contain false and misleading information about their relationship. In March 2014 the applicant, in a written statement provided to the Department, stated that she had not moved to Melbourne to join the sponsor, as per her stated intentions at the time of the 820 visa grant, for financial reasons. This information was not correct. In July and September 2016 the applicant and the sponsor signed statutory declarations declaring that they were in an exclusive, committed, continuing de facto relationship. The sponsor was, in August and September 2016, in a relationship with another person, and the information in these statutory declarations was not correct. The Tribunal advised that the provision of false and misleading information was serious. If the Tribunal found the applicant had provided false and misleading information, it could find that she was not a credible witness, and might not accept her claims to have been in a genuine relationship before it ended and during which she suffered from family violence.

13. The applicant was advised that she could seek an adjournment and consult with her representative when questions were asked and concerns raised about this statement and these declarations, or whenever she felt the need.  As noted, the applicant did not seek an adjournment.

14. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing by phone.  

15. Further documents, a copy of the Delegate’s decision, and a statutory declaration by the applicant in support of her claim to have suffered from family violence, were provided to the Tribunal on 27 July 2018, following the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue before the Tribunal is whether a genuine de facto relationship existed between the parties at the time of application, and, if so, whether the applicant experienced relevant family violence before it ended. 

18. As noted, the applicant was granted an 820 visa on 24 July 2014. The Tribunal accepts that the parties met in in 2010, and that they were in a relationship when they lived together in Brisbane for two years, from February 2011 the end of February 2013, before the sponsor moved to Melbourne. At the time the 820 visa was processed, the applicant advised the Department, in written statements, that she and the sponsor were living apart, but advised that this was a temporary arrangement because the applicant had to go to Melbourne to pursue his studies. She stated that she was making plans to join him in Melbourne.

19. The applicant did not join the sponsor in Melbourne and the Tribunal finds, for the reasons discussed below, that the parties lived separately and apart from March 2013; that they did not have a mutual commitment to a shared life from March 2013; and that they were therefore not in a genuine de facto relationship from this time. They were not then in a genuine relationship at the time of applying for the 820 visa.

20. Regarding the applicant’s claim to have suffered from family violence, the Tribunal asked the applicant at hearing to elaborate on why she had not advised the Department that she had suffered family violence at the hands of her sponsor; and why she provided documents necessary to lodge a non-judicially determined claim only in July 2018, more than a year and a half after the visa refusal. The applicant stated that she had been unaware that she had suffered from family violence until she recognised behavioural patterns and symptoms during a session of training she was undertaking to become a counsellor, and she sought legal advice. She further claimed that, because of her youth, naiveté and Zimbabwean cultural background, she had been unaware that it was open to her to lodge such a claim. 

21. Regarding when the claimed family violence occurred, the Tribunal put to the applicant that she had been granted a Partner (Temporary) (Subclass 820) visa on the basis of being in a genuine de facto relationship with the sponsor. The applicant and her sponsor had submitted, at the time, numerous statements and statutory declarations declaring the relationship to be mutually supportive, happy and loving. The Tribunal asked the applicant whether she was in fact in a genuine, supportive, happy and loving relationship with the sponsor at the time of the grant of this visa, as she and the sponsor were not living together. The applicant responded by claiming that she and the sponsor were ‘in a good space when we got the 820’, despite not living together. She stated ‘things got a bit different’ after she ‘got the 820’; that ‘the tone’ of the relationship changed: the sponsor became critical of her; made more ‘one-sided decisions’; and that by then his excuses to stop her joining him in Melbourne had become weak and transparent. She claimed it was difficult to put a time on when the family violence occurred, and stated ‘2015’.

22. The applicant subsequently claimed that with hindsight, she perceived ‘glimpses’ and ‘suggestions’, before the grant of the provisional visa, among the sponsor’s personality traits and patterns of behaviour, of a domineering streak. In response to further questioning regarding when the claimed family violence commenced, the applicant stated that there were times before she was granted ‘the 820’ when the sponsor was irritable in her presence. She stated however that she accepted this as a normal aspect of any relationship.

23. When asked to confirm that the family violence manifested during time she and the sponsor spent together on weekend visits, in Melbourne or Brisbane, the applicant stated that it did. She stated that the fact that they were living apart and only seeing each other on weekends when one or the other made an interstate trip, was in what triggered the tension and discord in the relationship.  She did not claim, at hearing, to have suffered from family violence before the sponsor moved to Melbourne at the end of February 2013, or before she was granted the 820 visa on 24 July 2014.

24. At hearing the applicant acknowledged that her relationship with the sponsor had ended, but claimed that as far as she was concerned, it ended only on 12 December 2016 when the Department advised her during her telephone interview that it knew the sponsor to be in a relationship with another person. She acknowledged that she hadn’t communicated with and ‘barely saw’ the sponsor in 2016, and advised that this had come as somewhat of a relief, as she had suffered from family violence in the form of his critical and name-calling conduct, in 2015.

25. As noted, the Tribunal accepts that the parties were in a relationship when they lived together in Brisbane in 2011 and 2012, until the time the sponsor moved to Melbourne at the end of February 2013. In assessing whether the applicant and the sponsor were in a de facto relationship as defined in section 5CB of the Act at the time of application of the Partner (Temporary) (Subclass 820) and Partner (Residence) (Subclass 801) visas on 27 June 2013, the Tribunal has considered the matters prescribed in regulation 1.09A.  

    Financial aspects of the relationship

26. The applicant confirmed at hearing, that she and the sponsor had no joint ownership of real estate or vehicles or other major assets; no joint liabilities; had not pooled their resources in relation to major financial commitments; and had no legal obligations owed to the other.

27. The applicant provided statements of transactions from her own personal bank account, for the period 22 April 2012 – 10 February 2014. Transactions highlighted and annotated by the applicant showed that she paid rent to her housemate, the sponsor’s sister; several airfares between Brisbane and Melbourne; and made purchases in Melbourne including clothing and meals. The Tribunal does not accept these expenditures show that the applicant supported the sponsor financially, and the applicant and the sponsor shared day-to-day expenses, after the sponsor left for Melbourne in March 2013.

28. No statements of transactions were provided for any period after 24 July 2014. At hearing, the applicant claimed that she paid for airfares for herself and the sponsor. Evidence was provided that four flights between Brisbane and Melbourne were booked from 2014: two in 2015 and two in 2016. The Tribunal does not accept that these bookings show the parties sharing finances, or even spending time together. The sponsor’s Facebook pages indicate that his travel to Brisbane in 2015 was for the purpose of visiting his sister at the time of the birth of her daughter, his niece.

29. Centrelink records show the sponsor as stating his marital status as single during the time he was in receipt of Austudy, from 2013 to 2016.  At hearing the applicant stated that he did this for the purpose of obtaining a higher level of benefit. She claimed that when she was working full-time in Brisbane in 2014 and 2015, she provided the sponsor with financial assistance. No evidence was provided that the applicant transferred funds to the sponsor.

30. The applicant acknowledged that she and the sponsor managed their own bank accounts and financial affairs, separately, from the time the sponsor moved to Melbourne at the end of February 2013.

31. The Tribunal finds that from March 2013, the parties did not pool financial resources and share day-to-day expenses.

    Nature of the household

32. The applicant stated at the time the 820 visa was being processed that she and the sponsor were living temporarily in different cities because the sponsor was studying in Melbourne and she was working in Brisbane, and that she was in the process of planning her move to Melbourne.

33. The Tribunal asked the applicant to explain why she and the sponsor did not live together when she was working full-time and the sponsor was in receipt of Austudy, and therefore able to afford to rent a flat together. The Tribunal directed the applicant to a written statement she provided dated 5 March 2014, in which she had stated that she received an offer of a full-time position from a pathology company in Melbourne, but turned it down because the salary was less that she was receiving in Brisbane. The Tribunal questioned the significance of the salary difference, given the parties could have lived together more cheaply than apart, and saved on airfares as well as rental. The applicant then acknowledged that her refusal of the job offer ‘had nothing to do with the salary’. She stated that she had not moved to Melbourne because the sponsor made it clear that did not want her to. She stated that he shared his accommodation in Melbourne with another person, and didn’t want his living arrangements disrupted.

34. The applicant confirmed at hearing that she has not lived in the same city as the sponsor since March 2013, when the sponsor left Brisbane and moved to Melbourne. She further confirmed that she realised before the 820 visa was granted, that the sponsor did not want her to move to Melbourne to live with him.

35. The Tribunal asked the applicant how much time she spent under the same roof with the sponsor after the grant of the 820 visa. The applicant was vague and evasive in responding to this question, claiming that she and the sponsor met up on weekends ‘as often as possible’. As noted, evidence was provided of only four flight bookings after 24 July 2014, and two of these were in 2015, when, as noted, the sponsor described his travels to Brisbane as being for the purpose of visiting his sister and newly-born niece. Further, the applicant acknowledged at hearing that she did not communicate with and ‘barely saw’ the sponsor in 2016. The Tribunal does not accept, on the evidence provided, that the applicant and the sponsor lived together in either Brisbane or Melbourne as a de facto couple after March 2013.

36. No evidence was provided, and the applicant did not claim, that the parties ever shared joint responsibility for the care of children or responsibility for housework after the sponsor moved to Melbourne. The Tribunal finds that the parties did not live together in a joint household, as a de facto couple, after March 2013.

    Social aspects of the relationship

37. Undated copies of photos were provided of the applicant and sponsor together, and of the applicant wearing what she claimed were clothing and jewellery gifts from the sponsor; and of the applicant and sponsor together with friends and family members of the applicant. The Tribunal pointed out that the photos appeared to be the same as those provided to the Department for the second-stage processing, which the Delegate had found to be unsatisfactory as evidence of a continuing relationship, as most had been provided for the first-stage processing, and were taken at the sponsor’s sister’s wedding held on 19 July 2014. Only one, which again showed the applicant and the sponsor with the sponsor’s sister, was taken later, in 2015, at the Nigerian Independence day celebrations in Brisbane. 

38. The applicant stated that there were other, later photos, but did not provide any to the Tribunal. The applicant’s mother showed the Tribunal several undated photos that appeared to have been taken when the sponsor lived in Queensland.

39. The Tribunal referred the applicant to printouts of her Facebook pages from 2012, pointing out that from this time, there was no appearance of or reference to the sponsor, and the applicant showed herself celebrating milestones such as graduations and birthdays with her family members and friends, as a single person. The applicant responded by claiming that the sponsor advised her in 2012 that he was leaving Facebook so as to concentrate on his studies, and that she is a private person and did not share any information about her relationship with him on Facebook after 2012 for this reason. The Tribunal found these explanations for the absence of the sponsor on the applicant’s Facebook pages after 2012 weak and unconvincing.

1. The Tribunal pointed out to the applicant that the sponsor had not left Facebook; that he had in fact posted information publicly, for the purpose of sharing with his friends and family, that he was in a relationship with another person and had in fact become engaged, in November 2016, to marry this other person. The applicant claimed that she was unaware that the sponsor was in a relationship with another person until she was advised by the Department, during her interview on 12 December 2016. She claimed that none of her or the sponsor’s friends told her about it, for cultural reasons; that the sponsor’s sister whom she had shared a house with, did not tell her about it, for cultural reasons; and she did not confront the sponsor about his other relationships, despite being aware of this, for cultural reasons. She claimed, as noted, that she never looked at the sponsor’s Facebook entries after he told her he was leaving Facebook. The Tribunal found these explanations and claims regarding the applicant’s ignorance about the sponsor’s personal life, implausible and unconvincing.  

2. The Tribunal referred the applicant to statutory declarations signed in 2016 by family members and friends, certifying that the parties were in a committed, loving, respectful relationship. The applicant argued that to the outside world, she and the sponsor, even though they lived in different cities, presented as a happy couple, and that she hid her unhappiness caused by the family violence even from close friends and family members, for cultural reasons. The Tribunal notes that the parties had not lived together since March 2013, and that they were not, openly, on the part of the sponsor, in a mutually committed exclusive de facto relationship in 2016 when these declarations were signed, and gives them little weight.

3. The Tribunal showed the applicant’s mother an undated written statement she provided at the time of the Subclass 801 visa assessment, claiming her daughter ‘has been so happy ever since she met (the sponsor), that’s all a mother can ask for … They love each other very much and this relationship is genuine’. The applicant’s mother testified that she believed the relationship between her daughter and the sponsor was genuine because they lived together in Brisbane before the sponsor left for Melbourne. She provided undated photographs of the sponsor and her daughter together with her and her son, the applicant’s brother. She stated that her daughter had never shared with her, for cultural reasons, that the relationship had become abusive. She argued that it was normal for women to be dominated by their male partners in Zimbabwe, and that she herself had suffered from family violence.

4. The applicant’s mother provided no reasons or arguments why she believed the relationship to be genuine after March 2013, when the parties remained living in different cities, and the Tribunal gives little weight to her testimony.

5. The Tribunal finds that there was little social recognition of the parties’ relationship after March 2013. The Tribunal accepts that they parties visited each other in their respective home cities after March 2013, and that they met up with friends and family members including the sponsor’s sister at these times. However the evidence does not support, and the Tribunal does not find, that after March 2013 the parties planned and undertook social activities as a de facto couple. The Tribunal does not find that the parties presented themselves and were related to as a de facto couple by friends and family after this time.

   Nature of the persons’ commitment to each other

6. The Tribunal pointed out that the sponsor travelled overseas in 2014 and twice in 2016, and asked the applicant why she did not accompany him. She stated that she remained in Australia for financial reasons, and because she did not know, because she was young and naïve, that she was allowed to travel overseas while on a Temporary Partner visa. The applicant is 27 years old at the time of decision, presented at hearing as articulate, confident and assertive, and the Tribunal found her claim to believe she was not allowed to travel with her de facto partner, even for the purpose of visiting family overseas, unconvincing. The Tribunal further found the applicant’s ignorance of the fact that the sponsor travelled overseas with another partner, even if true, to indicate that the she and the sponsor were not, as she claimed in a statutory declaration signed on 28 July 2016, in a mutually committed, honest, and exclusive de facto relationship.

7. The Tribunal asked the applicant to confirm that the family violence she claimed to have suffered occurred on the weekends she and the sponsor met up in either Brisbane or Melbourne, when they were in accommodation they shared with other people, and when they went out for meals and outings with the sponsor’s sister and other people.  The applicant confirmed that it did. She claimed that the sponsor behaved towards her in a belittling, critical, and domineering manner when they met up on weekends. The Tribunal asked the applicant why in that case she did not accept at the time that the relationship had ended; that the sponsor had moved on. The applicant argued that she was naïve and trusting, but acknowledged that she had accepted by 2015 that the relationship had ‘problems’.  She stated, as noted, that it was a relief for her that she did not communicate with and ‘barely saw’ the sponsor in 2016. She nevertheless claimed she believed until 12 December 2016 that she was in a de facto relationship with the sponsor, albeit one going through a ‘phase’.

8. The Tribunal pointed out that for two of his overseas trips, in August and November 2016, the sponsor travelled to Europe, Thailand and Malaysia, for holidays, with another partner, to whom he became engaged to be married on the second trip. As noted, the Tribunal advised the applicant that this, and other information in the record of her interview with the Department, was information that would lead or could contribute to the decision being affirmed, as it indicated that she and the sponsor were not in a de facto relationship. As noted, the applicant was advised that she could seek an adjournment, but did not do so.

9. The applicant provided a considered response to the Tribunal. She repeated her claim that she believed herself to be in a de facto relationship with the sponsor up until the time of her Departmental interview on 12 December 2016, when she was shocked to learn that he was in another relationship. Regarding other issues raised during this interview, namely that she couldn’t provide the sponsor’s year of birth, his current address or the name of the hospital where he worked, she explained to the Tribunal that she was ‘caught unawares’ by the phone call; that she fumbled her response regarding his date of birth because of a brief memory lapse; that the sponsor had recently moved to a new address; and that she didn’t know the name of the hospital where the sponsor worked because she has never been there. The Tribunal accepts that the applicant was ‘caught unawares’, and that the sponsor might have recently moved, but finds that the applicant’s inability to provide such basic information about the sponsor to indicate that the applicant and the sponsor had not been in a genuine relationship for some time prior to the Departmental interview.

10. The Tribunal referred the applicant to statutory declarations signed by herself, on 28 July 2016, and the sponsor, on 6 September 2016, certifying that they were in an exclusive, committed, continuing de facto relationship. The Tribunal pointed out that the sponsor had just returned from a European trip with his soon-to-be fiancée when he signed his declaration. The applicant claimed she was truthful when she signed her declaration; that she ‘couldn’t speak for’ the sponsor; and that she believed herself to be in a de facto relationship, even though she had not communicated with and barely seen the sponsor for the past year. She advised that her agent obtained the declaration from the sponsor, and was unable to provide a reason as to why the sponsor signed the statement when he was openly, before friends, family, and the wider community, in another relationship.

11. The Tribunal accepts that the parties were in a relationship that lasted for two years, from February 2011 to February 2013. The sponsor moved to Melbourne at the end of February 2013, and, on the applicant’s own admission, did not want the applicant to join him. On the evidence provided, the sponsor did not see their relationship as long-term, and the Tribunal finds that the parties were not in a continuing relationship, after March 2013. The Tribunal finds that the applicant and the sponsor lived separate lives, and that they did not communicate and provide each other with companionship and emotional support from this time.

12. Having considered the matters prescribed in regulation 1.09A, the Tribunal is not satisfied that after March 2013 the parties were in a relationship that was genuine and continuing; that they lived together and not separately and apart on a permanent basis; and that they they had a mutual commitment to a shared life to the exclusion of all others.

    Other relevant matters

13. As noted, the applicant was articulate and assertive in arguing her case at hearing. She is 27 years old at the time of decision. The Tribunal is unconvinced because it finds implausible her claim that she remained committed to the relationship and was unaware, for the reasons of youthful innocence, naiveté and Zimbabwean cultural influence, that the sponsor was not committed to the relationship after he moved to Melbourne and at the time she was granted the Partner (Provisional) (Subclass 820). The Tribunal finds that the applicant and the sponsor provided false and misleading information in July and September 2016 about the nature of and their commitment to the relationship. Because no plausible alternative explanation was provided, the Tribunal finds that they provided false and misleading information for the purpose of obtaining a migration outcome, and that the applicant is not a credible witness.

14. As the Tribunal has found the applicant was not in a genuine de facto relationship from March 2013, the Tribunal finds the applicant was not in a genuine relationship with the sponsor when she claimed to experience family violence.

15. The applicant therefore does not meet cl. 801.221(6)(c). The applicant acknowledged, through her representative, that her relationship with the sponsor has ended and therefore she does not meet cl. 801.221(2)(c). The applicant’s circumstances are not relevant to, and she has made no claim against, alternative criteria in cl.801.221. Therefore, she does not meet cl. 801.221.

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

    DECISION

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

    Adrienne Millbank
    Member