Lapara (Migration)

[2021] AATA 2566

Lapara (Migration) [2021] AATA 2566 (12 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Angeline Lapara

CASE NUMBER:  1913058

DIBP REFERENCE(S):  BCC2017/3253393

MEMBER:P. Maishman

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 May 2021 at 3:04 pm (WA time)

DATE OF WRITTEN RECORD:                26 May 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 26 May 2021 at 11:31am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – financial aspects – nature of the household – social aspects – commitment to each other – relationship ceased – family violence claim – evidentiary requirements – IMMI 12/116 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 1.23, 1.24, 1.25; Schedule 2, cls 820.211

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 May 2019 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 May 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Ms Lapara applied for a partner visa on 7 September 2017 on the basis of her relationship with her sponsor, Mr Mark James Ellis Hampton.  The primary criteria that Ms Lapara has to satisfy includes that she is the de facto partner of her sponsor at the time of application and at the time of the decision about that application.

4. The delegate refused to grant the visa on the basis that Ms Lapara did not meet clause 820.211(2)(a) because the delegate was not satisfied that Ms Lapara was the de facto partner of Mr Hampton as defined in section 5CB of the Migration Act.

5. Ms Lapara attended the hearing and was assisted by Mr Matthew Reynolds.  Mr Matthew Reynolds is not a migration agent and assisted Ms Lapara on the basis of his friendship with her. 

6. The hearing was held by a Microsoft Teams video conference.  Ms Lapara lives some 1,600 kilometres from Perth where the hearing is held.  I am satisfied that Ms Lapara has been given every opportunity to have a fair hearing and I have heard what she has had to say, despite not being efficient to have a hearing done in person.

7. The Tribunal was assisted by an interpreter of Tagalog and English.  Ms Lapara was able to proceed with most of the hearing in English and relied on the interpreter for short periods of time. 

8. Ms Lapara had told the Department prior to its decision that her relationship with Mr Hampton had ceased and that she had been a victim of family violence.  The delegate considered the evidence and was not satisfied that the evidence supported that Ms Lapara was in a genuine de facto relationship with Mr Hampton at the time the visa application was made.  Despite a number of indicators, the delegate accepted that they had some sort of relationship. In any case the delegate was not satisfied that their relationship had been de facto for 12 months prior to the visa application being made. 

9. The Tribunal asked Ms Lapara to tell it about her relationship with Mr Hampton.  Ms Lapara was forthright and answered the Tribunal’s questions and concerns without hesitation.  I do not have any question that Ms Lapara was honest in her evidence and that she is a credible witness.

10. Ms Lapara told the Tribunal that she had met Mr Hampton in 2009 and entered a more serious relationship with him in 2012.  He rented a unit in the Philippines for her to stay in.  He paid the rent.  She was working and paid for her own food and bills.  Mr Hampton would stay there when he visited three or four times a year for a few weeks at a time.

11. They setup a business together in 2013.  Ms Lapara did not have any decision making control of the business and Mr Hampton’s approval was required for her to undertake her management role of the business.  That was a restaurant business.  Mr Hampton controlled the finances and he arranged the payment of the outgoings for the business such as rent and bills.

12. Ms Lapara told me that she ceased to be involved in the business from around 2015 because Mr Hampton no longer trusted her with the finances.  She came to Australia in 2016 on a visitor visa.  She left Australia on the expiration of that first visitor visa and applied for a further visitor visa which allowed her to enter Australia again in June or July 2017.

13. There are a number of matters when deciding if people are in a de facto relationship as defined by section 5CB that I have to take into account.  These are contained in regulation 1.09(A)(3) of the Regulations.  These matters are the financial aspects of the relationship with Mr Hampton, the nature of the household Ms Lapara and Mr Hampton share; the social aspects of their relationship and the nature of their commitment to one another.

14. In relation to the financial aspects, Ms Lapara told the Tribunal that she and Mr Hampton established a joint account for the purposes of Migration requiring one to satisfy Migration that they were sharing their financial arrangements.  Ms Lapara said that that account was rarely if ever used. By the time she applied for a partner visa she was then allowed to work and commenced to do so.  She largely supported herself from her own finances although Mr Hampton paid for the rent and bills of their accommodation at Hedditch Street in South Hedland.

15. Mr Hampton also covered the payments of the bills.  Sometimes they shared their finances for the purpose of food.  Mr Hampton did provide a statutory declaration with the application to say that he fully financially supported Ms Lapara.  Based on that evidence I am satisfied that Ms Lapara and Mr Hampton did have a financial arrangement so that she would be financially supported by Mr Hampton and that is a pooling of their financial resources and to an extent, a sharing of their day to day household expenses.

16. There is no evidence before the Tribunal that Ms Lapara and Mr Hampton jointly owned any assets or had joint liabilities or had any legal obligations owed to each other.  Mr Hampton paid the rent and bills on behalf of Ms Lapara and I am satisfied that the financial aspects of the relationship between Ms Lapara and Mr Hampton indicated that they were in a de facto relationship at the time of the application.

17. Further I am satisfied that Mr Hampton provided financial support to Ms Lapara in the form of providing at least employment, if not business partnership in the brief enterprise in the Philippines.  I am satisfied that occurred and that occurred more than 12 months before the visa application was made and that is an indication of the joint financial arrangements of Ms Lapara and Mr Hampton. I am satisfied that arrangement was in place at least 12 months before the visa application was made.

18. Ms Lapara told the Tribunal that Mr Hampton had three children in the Philippines and she provided financial support for them while Mr Hampton was unable to work due to an illness for at least six months from June 2018.  The Tribunal received no evidence from Ms Lapara about how the payments were made but she was able to tell the Tribunal their ages and that she had met them before when she and Mr Hampton travelled to the Philippines.

19. Ms Lapara did not claim to have any parental responsibility for the children but the Tribunal notes her concern for their welfare because they were Mr Hampton’s children.  Ms Lapara also told the Tribunal about her and Mr Hampton’s living arrangements, their movements, their joint living arrangements in the Philippines.  The Tribunal is satisfied that the nature of the household of Ms Lapara and Mr Hampton while they were in the same country together is indicative of a couple in a de facto relationship.

20. I am also satisfied that that was the case 12 months prior to the visa application.  Notwithstanding that Mr Hampton does not appear to have resided for an extensive time in the Philippines, I accept that when he did go to the Philippines he stayed in the unit he rented for Ms Lapara’s benefit. 

21. The Department’s file contains a number of photographs of Ms Lapara and Mr Hampton over the years from 2009.  Ms Lapara told the Tribunal that she had met Mr Hampton’s parents in Melbourne.  There are a number of statutory declarations on the Department’s file which express the opinion of friends in Hedland that Ms Lapara and Mr Hampton were at the time those statutory declarations were made, considered to be a de facto couple.

22. I am satisfied that the social aspects of Ms Lapara’s and Mr Hampton’s relationship at the time of application and in the 12 months at least before that application was made support a finding that Ms Lapara and Mr Hampton were in a de facto relationship.

23. I considered the nature of Ms Lapara’s and Mr Hampton’s commitment to each other.  It is not for the Tribunal to consider the quality of the relationship.  It is clear to the Tribunal that Mr Hampton entered into a relationship with Ms Lapara back as far as 2009.  They travelled together.  Although they did not live in the same country together for much of the time until 2016 or 2017, they did live together for the times that Mr Hampton travelled to the Philippines.

24. I accept Ms Lapara’s evidence that she saw her relationship as long term.  She hoped to have children and get met married and buy a house. She discussed those things with Mr Hampton and they just never eventuated.  That ultimately led to part of the reasons for the relationship ceasing.

25. I am satisfied that the nature of the commitment of Ms Lapara and Mr Hampton to each other at the time of application and at least 12 months prior is indicative of a couple in a de facto relationship.  I am satisfied that Ms Lapara and Mr Hampton were not related by family.

26. Having considered those matters contained in Regulation 1.09A(3), I find that at the time of application and at least 12 months prior, Ms Lapara and Mr Hampton had a mutual commitment to a shared life to the exclusion of others. They had a genuine and continuing relationship and they did not live separately and apart on a permanent basis. On that basis I am satisfied that their relationship is properly defined as a de facto relationship as defined in section 5CB(2)(a) to (d) of the Migration Act.

27. The time of decision criteria requires the relationship to continue and the sponsorship to continue.  Mr Hampton told the Department in February 2019 that his relationship with Ms Lapara had ceased.  Ms Lapara confirmed in her response to the Department’s questions on 21 April 2019 that her relationship with Mr Hampton had ceased and said she had been in an abusive relationship. 

28. Prior to the hearing the Tribunal was concerned that the evidence did not meet the evidentiary requirements to be taken to be a claim for family violence.  One of the criteria that exempts the requirement to be in a continuing relationship is if the applicant has suffered family violence perpetrated by the sponsor in this case. Ms Lapara confirmed that the sponsor was not deceased.  Ms Lapara also confirmed that she did not have any children with Mr Hampton. 

29. The Tribunal sent Ms Lapara a letter on 26 March 2021 informing her that the Tribunal would review the issue of whether at the time of the application she was the spouse or de facto partner of Mr Hampton. The Tribunal attached a copy of clause 820.221 and explained that at the time of the decision it was a requirement that she continue to be the spouse or de facto partner of Mr Hampton.  The Tribunal’s letter said that a visa may still be granted despite a relationship ceasing including where the sponsoring party has committed family violence against the applicant.  The Tribunal including a copy of Division 1.5 of the Regulations which contain the special provisions relating to family violence and told Ms Lapara that it did not appear that she had provided any evidence as outlined in Regulation 1.23 to support her claim to have suffered family violence.

30. The Tribunal also attached a copy of the evidentiary requirements contained in the instrument IMMI 12/116 which identifies clearly the type of evidence that is acceptable to be provided and what is required to be included in that evidence.  The Tribunal received a response to that letter containing the chat print screens from ‘Peter Baker’ between the period 25 January 2019 and 18 February 2019.  The Tribunal accepts Ms Lapara’s explanation that ‘Peter Baker’ is an alias of Mark Hampton.  Ms Lapara explained that Mr Hampton uses that alias to maintain his privacy on social media sites.

31. The chat screens from Peter Baker, AKA Mark Hampton, do not meet the evidentiary requirements in IMMI 12/116 and is not evidence that can be taken into account for me to consider a claim of family violence.

32. Similarly, an email from Maria Jeleslie Thompson, Ms Lapara’s sister, dated 3 May 2021 discusses some treatment observed by Ms Thompson of Ms Lapara by Mr Hampton, however, Ms Thompson’s email is not from a source that is identified in the instrument IMMI 12/116 as an acceptable source for the type of evidence required to make a claim of family violence.

33. Additionally, regulation 1.23 requires the applicant who wishes to claim family violence to make a statutory declaration or to present evidence either from a court for a judicially determined claim of family violence meeting the requirements of instrument IMMI 12/116.  Ms Lapara told the Tribunal that she had no evidence from a court and did not attend the police.  The letter from Ms Lapara dated 3 May 2021 is not in the form of a statutory declaration and it is not a statutory declaration in accordance with regulation 1.25 of the regulations. 

34. Mr Reynolds sought to interject during the reasons for the decision claiming to have a statutory declaration. The Tribunal informed Ms Lapara at the conclusion of the hearing that it would not take further evidence after the hearing concluded. The Tribunal asked the parties during the hearing if there was any other documents to present.  The request for this information and the statutory declaration and the evidence in the proper format was made on 26 March 2021.  There is no evidence that the Tribunal has received that evidence.

35. The letter received by the Tribunal on 3 May 2021 is not in the form of a statutory declaration.  It is not witnessed by an authorised person.  Therefore, the evidence presented does not meet the requirements of regulation 1.24.  As such, there has not been a non-judicially determined claim of family violence that has been made under regulation 1.23.

36. Having considered the information that was provided to the Tribunal the Tribunal is not satisfied that a claim for family violence has been made.  Given the finding that the claim for family violence has not been established, Ms Lapara does not meet the requirements of clause 820.221(3) of Schedule 2 of the Regulations for the grant of the visa. 

37. There is no evidence before the Tribunal that Ms Lapara meets any of the alternative criteria. 

38. As Ms Lapara does not meet an essential criterion for the visa the Tribunal must affirm the decision under review.

    DECISION

39. The Tribunal affirms the decision under review.

    P. Maishman
    Member