Lapatha (Migration)

Lapatha (Migration) [2023] AATA 665 (22 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Bernadette Lapatha
REPRESENTATIVE:  Ms Krshna Capaque
CASE NUMBER:  2109536
HOME AFFAIRS REFERENCE(S):          BCC2018/5924014
MEMBER:Peter Emmerton
DATE:22 March 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 22 March 2023 at 2:27pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – genuine and continuing relationship before family violence – sponsorship withdrawn – undertaking limited joint activities and travel – no joint financial commitments or assets – applicant lived away from the sponsor’s farm for employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.09
CASES
He v MIBP [2017] FCAFC 206
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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 2 January 2019 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) and nor subsequently cl.820.221(3)(b). Therefore, they did not meet the requirements of a Partner (Temporary) (Class UK) Subclass 820 visa. This was because they were not satisfied that the applicant was in a genuine de facto relationship, (as defined by section 5CB of the Act), with the sponsor prior to the cessation of the relationship and was therefore unable to meet the requirements for the Partner (Temporary) (Class UK) Subclass 820 visa based on the claims of family violence as determined by cl.820.221(3)(b).
The applicant appeared before the Tribunal, via video, on 22 March 2023 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 decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the requirements of 820.211(2)(a) and 820.221 are met.
The following documents were provided to the Tribunal from the Department’s files.
- Department visa application forms
- Department notes and correspondence from former sponsor regarding concerns stating he was withdrawing from his sponsorship
- National Police Certificate of Mr John Getty, dated 28 August 2018, X7 convictions- one assault
- Katherine Hospital Emergency Department assessment of review applicant, dated 8 November 2020
- Statutory Declaration of Ms Mary Ann Thompson, dated 14 January 2021
- Department invitation to comment on unfavourable information, dated 22 May 2021
- Department refusal Decision, dated 12 July 2021
- Photos of applicant with sponsor/family (assumed – no descriptions)
- Review Applicant Passport photo page copy
The following documents were provided to the Tribunal by the applicant.
·Representatives’ submission of 20 March 2023
·Statutory Declaration of Bernadette Lapatha, dated 20 March 2023
·Personal Bank Statements, April 2019 to November 2020
·Receipts, Wise Money Transfers, 2018
·Email, Purchase Order, June 2020
·Email Correespondences, J Etty and B Lapatha, December 2017 to December 2020
·Call History, J Etty and B Lapatha, May 2020 to June 2021
·Form 888, Lene Meeson, dated 21 June 2021 (year unclear)
·Form 888, Gordon William Meeson, dated 14 March 2023
·Statements, Romeo T Lapatha Jr, dated March 10 2023
·Statement of Maria Asela Goth, dated March 19 2023
·Flight Itinerary, J Etty and B Lapatha, 2020
·Email and Receipt, Accommodation, J Etty and B Lapatha, 2020
·Photographs - vari
·Correspondences, B Lapatha and M Etty
·Correspondence, J Etty and R Glastonbury
·Farm Household Allowance Form, 2019
·Email Correspondences, B Lapatha to Various Re: Wilderness Farms
·Medical Report, Katherine Hospital Emergency Department
·Police Reports, Northern Territory Police
·Letter, Catholic Care NT, undated
·Screenshot of Messages from J Etty
·Statutory Declaration, Ms Mary Ann Thompson dated 21 March 2023
·Statutory declaration for family violence claim, form 1410, signed by B Lapatha, 21 March 2023
Whether the parties are in a spouse or de facto relationship
Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen
Are the parties in a de facto relationship?
'De facto partner' is defined in 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 and 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.
The Tribunal notes the sponsor and visa applicant met online on an internet dating site around November 2017. They communicated via telephone and email. Evidence was provided to the Tribunal in support of this assertion in the form of a summary document. They met in the Philippine’s in early February 2018. The sponsor proposed during the trip. The sponsor travelled back to meet the applicant and her family in late March 2018. The applicant visited and stayed with the sponsor in July for 3 months and returned to her home during which time her mother had a medical episode and she stayed 3 weeks as a result. She then returned to the sponsor’s home in November 2018. This was confirmed at the hearing.
On 18 December 2020, the sponsor advised the Department that that they wished to withdraw their sponsorship as the relationship had ceased. The visa applicant verified at the hearing and previously in writing that the relationship had ceased.
The Department wrote to the visa applicant on 22 December 2020 with an invitation to comment on the information it had received regarding the breakdown of their relationship. Their representative advised the department on 18 January 2021 that the applicant had suffered family violence and wished to seek residence under the family violence provisions of the Migration Act 1994 (the Act).
It is clear from the applicant’s response and the sponsor’s communication with the Department that at the time of the delegates decision they were not in a genuine de facto relationship. This was agreed by the visa applicant at the hearing.
The visa applicant is required to meet cl.820.221 at the time of decision. requires the applicant to continue to be sponsored by an eligible person and,
·is the spouse (as defined under section 5F of the Act) ,
·or de facto partner (as defined under section 5CB of the Act) of that sponsor;
·or that if the applicant is no longer in a spousal or de facto relationship with the original sponsor, they satisfy subclause (2) or (3) of the clause.
As the applicant is no longer in a spousal or de facto relationship with the original sponsor they are unable to satisfy this requirement in subclause (1).
Subclause (2) requires that the original sponsoring partner has died. There is no evidence that this has occurred in this case, so they do not satisfy this subclause.
Subclause (3) requires that the relationship which would have formed the basis for the grant of a subclass 820 visa has ceased and that either:
·the applicant or a dependent child has suffered family violence committed by the sponsor; or
·there is a child to whom both the applicant and sponsor have shared obligations in the nature of custody and/or contact/access.
The visa applicant has claimed that they had suffered family violence committed by the sponsor.
The Tribunal has considered all aspects of the relationship. The Tribunal notes that in the period between the delegate’s decision, over 1.5 years ago and the review before the Tribunal, it has been possible for the applicant to gather and present additional relevant evidence for consideration.
Financial Aspects
In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.
The Tribunal has no evidence of joint asset ownership.
The Tribunal has no evidence before it of joint liabilities.
The Tribunal has no evidence before it of joint legal obligations.
The Tribunal notes that there is no evidence of a joint Bank Account. It was claimed that the sponsor didn’t want this to occur.
The Tribunal is in receipt of 2 money transfer receipts indicating a total of approximately AUD$2,800 from the sponsor to the visa applicant dated June and August 2017, prior to the visa applicant living in Australia. It also has receipt copies that are claimed to represent the purchase of a mobile telephone for the sponsor by the visa applicant and a kettle and face masks.
The Tribunal has perused a copy of a Farm Household Allowance claim form indicating that the visa applicant was the claimant’s, (sponsor) de facto. The Tribunal notes that this is a self-declared document filled out by the claimant without any supporting evidence or documentation.
The Tribunal has been furnished with copies of the visa applicant’s ANZ Bank Statements from 8 April 2019 until 16 November 2020. The claim has been made that the entries regarding the mobile phone purchase relate to a gift from the applicant to the sponsor. This was reiterated during the hearing – there is no corroborating evidence available to the Tribunal.
The Tribunal accepts that the claims associated with dinners and travel accommodation stated to be associated with the visa applicant and the sponsor undertaking joint activities are reasonably assumed as accurate, although there is no corroborating evidence to demonstrate their accuracy only the Bank Statements. Paragraphs 21-28 were agreed to as correct by the applicant during the hearing.
The Tribunal notes that claims have been made regarding the applicant purchasing household groceries for herself and the sponsor. It notes however that many of these purchases according to the evidence taken from the Bank Statements occurred at times when the applicant was staying in Katherine away from the farm. The Tribunal questioned why this was the case, pointing out that it was illogical to purchase food early in the week for them as a couple if she was not returning to the farm until the weekend. The Tribunal found the response unconvincing and believes some of the expenditure was for the applicants use whilst staying in town for the working week. It does however accept some of the purchases made towards the end of the week would logically be an indication of sharing her financial resources with the sponsor.
Claims were made that the sponsor financially supported the visa applicant prior to her being able to work. No evidence was provided to the Tribunal substantiating the claim.
The Tribunal places only moderate weight on the forementioned evidence. It is satisfied that the applicant demonstrated that some the financial aspects of the relationship were consistent with two people in a genuine relationship.
Nature of the Household
When assessing the nature of the household the Tribunal has considered the domestic living arrangements, shared household duties, daily routines and caring for children. The delegate was not satisfied that the couple were able to demonstrate the nature of their household was consistent with two people in a genuine and continuing spousal relationship, as no evidence was provided.
Statements have been provided by the applicant to the effect that she lived on the sponsor’s farm located outside of Katherine. This is accepted by the Tribunal. She maintained the cooking, household, laundry tasks and the sponsor maintained the farm and the house externally. It was also stated the applicant worked for 1 month on the farm and then part-time undertaking farm and administrative duties whilst she worked as a disability support worker in Katherine, where she was domiciled during the week. No evidence has been provided to support these assertions.
Statements were made by the applicant that she had a friendly and warm relationship with the sponsor’s adult daughter which she valued. The Tribunal has no evidence before it to suggest otherwise but nor does it have substantial evidence to support the statement.
The Tribunal notes that there are no children associated with the relationship, nor therefore any such associated caring responsibilities.
The Tribunal places minimal weight on the forementioned evidence.
Social aspects
In assessing the social aspects of the relationship, the Tribunal has considered social interactions, evidence of joint social activities, representation of their relationship to others and recognition of the relationship by friends and family. The delegate was not satisfied that the couple had demonstrated that the social aspects of the relationship were consistent with two people in a genuine and continuing relationship as minimal evidence was provided
The Tribunal accepts as evidence some limited photographic evidence of the sponsor and visa applicant together in some limited social settings with a limited range of other individuals. It also accepts the statements and Statutory Declarations made by friends and the applicant’s family that they engaged in some social activity with the visa applicant and sponsor. Minimal specific details were provided to establish why they believed the relationship was a genuine de facto relationship.
The Tribunal accepts the evidence of a trip by the sponsor to the Philippine’s where they interacted with the applicant’s family. It also acknowledges that there is some written evidence and receipts demonstrating that they had travelled together to South Australia, the unsubstantiated claim being the sponsor’s mother’s grave was visited.
There is only minimal imprecise statements / Statutory Declarations indicating the applicant and sponsor were considered a couple by their social peers.
The Tribunal places minimal weight on the forementioned evidence.
Nature of the Commitment
In relation to the nature of the commitment, the Tribunal considered the nature of the parties first meeting, relationship development, length of time living together, degree of companionship and mutual emotional support and whether they see the relationship as long term. The delegate was not satisfied that the couple saw the relationship as a long-term one, that they draw emotional support and companionship from each other or that there is a commitment to a shared life together as evidence was not presented to support the alternative assertion.
Assertions have been made that the couple were engaged to be married but the sponsor did not follow through with the necessary arrangements. No evidence has been provided to corroborate this. However, it is accepted by the Tribunal that the couple did live in the same residence for a period of time prior to the delegate’s decision.
The Tribunal believes the evidence that the sponsor claimed the visa applicant as his de facto on Government documents, Department of Agriculture and Water Resources and the Department of Human Services as unsubstantiated as they are unchecked self-declarations made by the sponsor and the motivations of the author are unknown.
Claims are made that the sponsor and visa applicant established relationships with each other’s families. The Tribunal accepts that the Statements made by, Mr Romeo T Lapatha Jr, dated March 10, 2023, support this assertion. There is little other evidence in support of this claim to the effect that family acknowledged the type of relationship other than the fact they were known to each other.
The Tribunal acknowledges the claims by the applicant of alcohol issues associated with the sponsor and accepts the evidence which indicates that other people around them acknowledged a similar observation.
The Tribunal again refers to the Statutory Declarations and written statements made by friends and family of the applicant. They do not specify detailed reasoning as to why they believed the applicant and sponsor were in a genuine de facto relationship.
The Tribunal notes the 3 Police Reports dated 20 November 2019, 12 January 2020 and 7 November 2020. They indicate domestic incidents which do not in themselves indicate a de facto relationship as there is no corroborating evidence. They do however indicate that the visa applicant and the sponsor had been residing at the same address for a period of time.
The Tribunal notes the Katherine Hospital report dated 8 November 2020. The report shows that the visa applicant claimed emotional stress as a result of emotional abuse by her partner. The symptoms had dissipated by the time of her presentation and no medication was prescribed. The Tribunal observes that this claim of a partner was self-reported with no corroborative evidence.
The Tribunal notes the undated Support Letter provided by CatholicCare NT for the visa applicant.
…..‘Ms. Lapatha has attended two sessions of counselling with me and some previous sessions with another of our counsellor although I am not able to say how many.
From my limited exposure with Ms. Lapatha I can say that she is genuine about wishing to stay in Australia and be successful with the Permanent Residency.
Regarding her situation with her partner, Ms. Lapatha has reported to me that her relationship was volatile and that there has been some form of domestic and family violence, financial deprivation and/or removal of privileges. Clearly I am unable to corroborate these matters via a third party, but Ms. Lapatha seemed genuine in her relaying of the events.’…..
As stated by the counsellor, the contents of the letter, in reference to the claimed relationship, are self-reported by the visa applicant to the counsellor and are unverifiable.
The Tribunal accepts the statement made by the applicant during the hearing that she is now in a relationship with (name provided) and living in Katherine together. The relationship is claimed to have commenced March / April 2021. The Tribunal has no evidence before it to suggest otherwise.
The Tribunal places overall minimal weight on the forementioned evidence in relation to the nature of the commitment.

For all of the above reasons, the Tribunal is not satisfied that at the time of application and at the time of decision, the visa applicant and the sponsor were in a genuine and continuing relationship and have a mutual commitment to a shared life to the exclusion of all others, and lived together, or not separately and apart, on a permanent basis.
On the basis of the above the Tribunal is not satisfied that the requirements of s 5CB(2) are met at the time the visa application was made or the time of this decision.
The Tribunal is not satisfied that the visa applicant was the spouse or de facto partner of the sponsor (as defined under sections 5F and 5CB of the Act, respectively) prior to the relationship ceasing. The Tribunal is not satisfied that the de facto relationship was genuine at the time of application or at time of decision. Consequently, the Tribunal is not required to consider the family violence claims further.
Therefore, the applicant does not meet cl 820.211(2)(a) and subsequently 820.211 and cl 820.221.
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 (Temporary) (Class UK) visa.
Peter Emmerton
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).

[2023] AATA 665

22 March 2023

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice