Law (Migration)

[2018] AATA 5960

Law (Migration) [2018] AATA 5960 (27 November 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Si Ying Law

CASE NUMBER:  1716181

DIBP REFERENCE(S):  CLF2013/60398

MEMBER:Ann Duffield

DATE:27 November 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 27 November 2018 at 11:23am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine de facto relationship – when and why relationship ended – family violence – legal proceedings regarding finances – conflicting and inconsistent statements by applicant and sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5CB(2), 65

Migration Regulations 1994 (Cth), r 1.09A(3), Schedule 2, cl 801.221(2)(c)

CASE
He v MIBP [2017] FCAFC 206

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 5 July 2017 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 applied for the visa on 13 March 2013 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 (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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the applicant and the sponsor were no longer in a spousal relationship required by the Migration Act.

4. The applicant appeared before the Tribunal on 15 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. The applicant was represented in relation to the review by her registered migration agent however that representative declined an invitation to attend the hearing.

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

   BACKGROUND

7. The parties provided the Tribunal with a copy of the delegate’s decision along with the application for review.

8. The applicant is a citizen of Hong Kong born on 7 September 1962. She has travelled to Australia a number of times on visitor and student visas since 2006 with the last one having been granted on 16 January 2012.

9. The sponsor is a citizen of Australia born on 8 August 1961. He has three children from a previous marriage born in 1982, 1985 and 1989. He divorced his previous wife in 2007.

10. The parties claim to have met on and began their de facto relationship in November 2011 after having first met in July 2011.

11. The applicant has claimed three children born 1984, 1988 and 1991 all of whom are living in Canada. She states that she is separated from her previous husband, but there is no record of any divorce. She claims to have lived at an address in Catchlove Street, Maudsland from November 2009 until February 2015.

12. Several of the applicant’s family members also live in Australia including one of her brothers, a niece and her niece’s mother. One of her son’s also studied in Australia.

13. The delegate from the department wrote to the applicant on 14 January 2014 asking for information to support the second stage of the visa process. The applicant did not respond.

14. On 5 October 2016 the applicant lodged a Protection Order request naming the sponsor and stating that they separated in February 2015. She claims that he brought women home and had sex with them including when she was in the house. She claims that she began legal proceedings against him in order to recover some $50,000 she claims he had not returned to her. The applicant claims that they separated due to the sponsor’s disrespectful and humiliating behaviour towards her and further, that because she had sought legal advice she was frightened that he would do something bad to her or her family. The applicant claims that the sponsor began having affairs in the last two years of their relationship (ie from around November 2012 – she applied for this visa in March 2013).

15. That order was granted on 19 October 2016.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the parties were in a genuine, continuing and exclusive spousal relationship as required by the Migration Act at the time the applicant claims she suffered domestic violence at the hands of the sponsor.

17. The parties have provided a number of documents to support their claims including the following:

    a.Bank account statements in joint names dated 1 March 2013 to October 2014. There are limited transactions listed on this statement.

    b.Receipts for travel undertaken by both parties over a period of several years from 2012

    c.Copies of ANZ account showing limited transactions in July/September 2014 There are very limited transactions on this account.

    d.Copies of an HSBC bank account in the applicants name showing a PO Box address in Southport dated November 2014 to February 2015

    e.

    Phone bills in the applicant’s name addressed to a Post Office Box in Southport dated from September/October 2014 to February 2015.

    
    
    

    SPOUSE/DEFACTO (CL.801.221(2))

    Whether the parties are in a spouse or de facto relationship

18. 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?

19. 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).

20. 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 r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

21. At the hearing, the applicant provided the Tribunal with a number of additional documents including a statement from her ex-partner and some medical records. The Tribunal put to the applicant a copy of the s376 certificate which covered information on the department’s file. The Tribunal put to the applicant that it was a copy of her brother’s incoming passenger card and it had no bearing on the Tribunal’s decision. The applicant indicated that she understood.

22. The Tribunal accepts that the relationship between the applicant and her sponsor ended in around February 2015. The Tribunal does not accept that it ended as a result of family violence for the following reasons.

23. The applicant told the Tribunal that she and her ex-partner were in a genuine relationship at the time that her temporary visa was granted in October 2014. She told the Tribunal that at the time her brother and her niece were living with them. The Tribunal asked the applicant if either her brother or her niece witnessed the family violence she spoke of and she claimed that they did not. She told the tribunal that her brother and her niece left the house in around November to return to Hong Kong and only returned in January. She said that they stayed with them only for a few weeks before they found alternative accommodation. Asked if she spoke to her brother about what was happening in her relationship with her ex-partner she said that she was too embarrassed to discuss it with her family.

24. The Tribunal put to the applicant that she had just provided the Tribunal with a statement written by her ex-partner and dated 12 November 2018. The Tribunal put to the applicant that in that statement her ex-partner claims that they were living in a genuine partner relationship. The Tribunal asked the applicant if she felt that this statement was consistent with her claims of being subject to domestic violence and she said that it wasn’t. The Tribunal gives this document little determinative weight.

25. The Tribunal asked the applicant if she had sought any assistance from anyone about her situation and she said that she hadn’t. She said that she suffered from anxiety and depression and did not seek help. She said that she had suffered from mental illness for over 20 years. The applicant provided the Tribunal with some medical documents which show she attended a psychologist five times from 17 October 2017 to January 2018. The documents also show that she had some physical conditions which required medical intervention during the period 2015 to 2018. The Tribunal does not give these documents any determinative weight as the applicant’s physical problems did not relate to any alleged domestic violence and her attendance at a psychologist office only occurred after she was advised that such attendance may assist her application. Indeed, the Tribunal notes that the applicant did not attend one of the scheduled appointments and there is no report from the psychologist about the applicant’s condition or how it relates to her visa refusal.

26. The applicant told the Tribunal that she did not know she could get help from anyone or seek a protection order until she spoke to the department in October 2016. The Tribunal put to the applicant that the fact that she did not seek a protection order until more than 18 months after the alleged incidents did not lend much weight to her claim that the relationship ended as a result of domestic violence. The Tribunal put to her that the order did not state what violence had been committed or when and the Tribunal could form a view that the alleged violence was in relation to her desire to recover money from her ex-partner rather than domestic violence that occurred prior to her leaving the relationship. The Tribunal put to the applicant that if it formed such a view it would affirm the decision under review.

27. She strongly denied that she took out the protection order in relation to money owed to her by her ex-partner. She said that matter was separate to the domestic violence she suffered during her relationship with him. The Tribunal put to her that she had not been able to provide any contemporaneous corroborating evidence of that alleged violence and all of the evidence that was provided suggested that the alleged violence, if it occurred, occurred after their relationship had broken down in October 2016. The applicant insisted that she did not know she could seek help.

28. The Tribunal finds this explanation unpersuasive. The applicant had her brother staying with her and her son, whom she claims was visiting at the time, had studied in Australia for several years. She herself had been travelling to Australia since 2009 and lived here since 2011. It seems unlikely that the applicant would not have known about her rights, particularly in relation to domestic violence, given the people around her and the length of time she had been in Australia. Furthermore, the applicant had a migration adviser at the time of these events from whom she could have sought assistance.

29. The applicant claims that she has not worked for pay since she arrived in Australia but has helped her ex-partner in his business and doing other things. She told the Tribunal that she lives off her savings of some $70,000. She claims that she received $20,000 of that from her ex-partner after she began legal proceedings and there was a court order that he pay that money. The other $50,000 was returned to her as a result of the condition of her protection order.

30. Asked where this money was as it did not appear on her bank statements, the applicant told the Tribunal that her brother had it in cash and gave her some when she needed it. The Tribunal put to her that the only bank statements she had provided to support her claims showed very minimal transactions and a balance of around $100 and were for a short period of time from around 2014. The Tribunal put to the applicant that these documents did not support her claims of being in a genuine, ongoing and exclusive spousal relationship. The applicant claimed that she did not do any paid work during this period and that her ex-partner supported her.

31. The applicant has provided the Tribunal with a court determined binding financial agreement between herself and her ex-partner confirming that she and her ex-partner’s relationship ceased in February 2015. That document does not set out the reasons for the breakdown of the relationship. The document only indicates that the parties to that agreement wish to end the “bitterness and costly litigation associated with a contested dispute about their financial matters”. The Tribunal accepts that the parties’ relationship has ceased but is not satisfied that it ceased as a result of domestic violence,. All the evidence in front of the Tribunal suggests that the domestic violence occurred well after the marriage had broken down and in all likelihood as a result of “a contested dispute about their financial matters”.

32. The applicant has claimed that the abuse started around two years prior to October 2014 which would put the abuse commencing around November 2012. The application subject to this review was lodged on 13 March 2013.  If this is indeed the case then she has misled the department in relation to her visa application by stating she was in a genuine, continuing and exclusive relationship at the time of application. Clearly this was not the case. The other alternative is that the applicant is being untruthful about the domestic violence claims.

33. There are conflicting statements from the applicant’s ex-partner who, on the one hand claims in a statement dated 12 November 2018 that he and the applicant were in a genuine continuing and exclusive relationship, yet on the other consents (without admission) to a protection order.

34. In any case, the Tribunal cannot be satisfied, on the basis of the evidence before it that the parties were in a genuine, continuing and exclusive relationship as envisaged by the Migration Act at the time of the alleged domestic violence or that such violence was a reason why the relationship ended.

35. At the very least it seems to the Tribunal that the relationship between the applicant and her ex-partner was not exclusive as envisaged by the Migration Act.

36. Equally the financial arrangements between the parties are unclear. The applicant claims that she has never worked but was supported by her ex-partner. There is little documentary or other corroborating evidence to support this claim.

37. The Tribunal is not satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others; the Tribunal is not satisfied that the relationship between the parties is genuine and continuing or that they live together.

38. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time of this decision. Therefore, the applicant does not meet cl.801.221(2)(c).

39. The applicant claims that the relationship broke down as a result of domestic violence and hence she may meet cl.801.221(6) which allows that an applicant would meet the requirements of subclass 820.221(2)(c) except that the applicant has suffered family violence committed by the sponsoring partner.

40. This clause however requires that the applicant and her sponsor be in a genuine, ongoing and exclusive spousal relationship at the time of the alleged domestic violence and that the relationship ceased only as a result of the alleged domestic violence.

41. As the Tribunal is not satisfied that the parties were in the required relationship at the time of the alleged violence, the Tribunal is not required to consider the applicant’s domestic violence claims.

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

    DECISION

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

    Ann Duffield
    Senior 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).