Newal (Migration)

[2018] AATA 2700

Newal (Migration) [2018] AATA 2700 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amit Newal

CASE NUMBER:  1714549

DIBP REFERENCE(S):  CLF2012/185556

MEMBER:Meena Sripathy

DATE:22 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 22 May 2018 at 4:24pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Circuit Court remit – Genuine de facto relationship – Compelling reasons – Family violence claims – Mailing address of Centrelink letters – Lack of transactions in joint account – Amount of rental payments – Dates of residing together – Address in AVO proceedings – Inconsistent evidence – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 280

Migration Regulations 1994 (Cth), rr 1.23, 1.24, 1.25, Schedule 2 cl 820.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 31 October 2013 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 September 2012 on the basis of his relationship with his sponsor, Ms Rosleen Reshma Singh. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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. On 12 September 2013 the sponsor advised the Department that the relationship ceased and withdrew sponsorship. The applicant has acknowledged that the relationship ceased and has claimed he is the victim of family violence.

3. However, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a), r.2.03A(3) or any of the alternate criteria in cl.820.211 because the delegate was not satisfied that the applicant and his sponsoring partner were in a de facto relationship for the 12 months prior to the application and was not satisfied that there were compelling and compassionate reasons to waive the 12 month requirement in r.2.03A(3). The delegate did not therefore go on to consider the family violence claim.

4. The applicant applied for review of this decision to the (then) Migration Review Tribunal (MRT). On 18 December 2014, the MRT affirmed the decision under review. The Tribunal was not satisfied that the applicant and sponsor were in a de facto relationship at the time of the visa application and therefore cl.820.211(2)(a) was not satisfied. The Tribunal did not consider it necessary to consider whether or not cl.820.211(2)(d) was satisfied or whether there were compelling reasons to not apply the Schedule 3 criteria or to consider whether the applicant met the time of decision criteria, in particular whether the applicant has suffered family violence.

5. The applicant sought review of the MRT decision to the Federal Circuit Court of Australia.  In a judgment dated 9 June 2017, the Federal Circuit Court of Australia quashed the decision of the MRT and remitted the matter to the Administrative Appeals Tribunal (substituted for the MRT) to be determined according to law.  The Federal Circuit Court found that the Tribunal made a jurisdictional error in not giving proper, genuine and realistic consideration to certain evidence of the sponsor that was before it. 

6. On 5 July 2017 the matter was remitted to the Administrative Appeals Tribunal. 

7. The applicant appeared before the Tribunal on 18 April 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

9. Information contained in the application form provided that the applicant, born in 1975, is a Fijian national.  He arrived in Australia on 27 October 2010 as a visitor.  He indicated he was in a de facto relationship from 25 May 2011. He has a mother and two brothers in Fiji and a brother in Australia. He was sponsored in the application by Ms Rosleen Reshma Singh, born in 1977, an Australian citizen.  She was previously married, and it is indicated that relationship ended on 13 February 2012. She has a mother, 3 brothers and 2 sisters all residing in Australia as well as three minor children.  In the applicant’s Form 47SP he  indicated that they met on 10 April 2011 at a friend’s party, began a relationship on 1 May 2011, made a decision to commit to a long term relationship on 25 May 2011 and were living together at the time of application. In the sponsor’s Form 40SP she states that they met on 10 April 2011 at a friend’s party, began the relationship on 15 May 2011 and committed to each other on 25 May 2011.  She states that both of them stayed at their own place until 13 February 2012.

10. The following documents were submitted in support of the application at the time of lodgement: Statutory Declarations from the applicant and sponsor dated 2 September 2012 setting out the inception and development of the relationship; Statutory Declarations Form 888 from Deo Prasad and Kirit Kewel, a friend and cousin of the applicant’s; Final AVO order relating to the sponsor’s ex husband dated 7 May 2012; ANZ Joint Account Authority relating to a an account in joint names; ANZ bank statement relating to the applicant’s own account indicating his address at [Address 1]; receipt from DIAC to applicant dated 6 August 2012 indicating a different address in [the same suburb]; Centrelink letter addressed to sponsor indicating she was receiving a Parenting Payment Single from 12 February 2012; lease in joint names for [Address 1] from 15 July 2012; tenant details for the same premises addressed to applicant and sponsor from 15 June 2011; photos of the applicant, sponsor and her children.

11. On 29 August 2013 the Department invited the applicant to submit evidence to support the existence of a de facto relationship 12 months prior to the date of the application.  It was noted that he had submitted documents that suggested the sponsor lived with her husband until 13 February 2012 and Centrelink documents indicating she was not partnered as at 18 May 2012.

12. In an email correspondence dated 12 September 2013 the sponsor advised the Department that the relationship between herself and the applicant had broken down since 6 June 2013 and she wanted to withdraw her application.  The Department invited the applicant’s response to this information by letter dated 13 September 2013.

13. On 21 October 2013 the applicant submitted a response to the Department’s request for evidence of the existence of a de facto relationship 12 months prior to the application and acknowledged that the relationship had broken down, and claiming that he had suffered domestic violence.  He referred to the evidence previously submitted of rent payments made prior to the application, the AVO against the sponsor’s ex husband and Statutory Declarations dated 2 August 2012, and a letter from Dr Chaturvedi relating to the applicant in support of his request for 8503 waiver.  In support of the domestic violence claim he submitted a Police card and a letter dated 18 October 2013 from Ms Veronica Tobin Ba, Psychologist.  The Police Card indicates an event number but provides no date, or other details of any report made.   

    Evidence before MRT

14. In July and December 2014, the following further evidence was submitted to the MRT: 

    ·further photos of the applicant, sponsor and her children;

    ·A Statutory Declaration dated 5 July 2014 from Mr Kirit Kewel, cousin of the applicant

    ·A Statutory Declaration dated 19 July 2014 from Kampta Prasad, paternal uncle of the sponsor;

    ·A Statutory Declaration dated 19 July 2014 from Deva Nand Gosai, second cousin of the sponsor;

    ·Response to an invitation to comment on adverse information put to the applicant under s359A.

15. The applicant gave oral evidence at a hearing before the MRT on 12 November 2014.  The MRT also took evidence from Mr Kampta Prasad and Mr Deva Nand Gosai.

    Evidence before current Tribunal

16. In April 2018 the Tribunal received a submission from the applicant’s representative and a letter dated 22 March 2018 from Satyan Rajamani MA (Social Work) MACA, Counsellor, Nepean Division. The submission argues that the applicant was in a de facto relationship with an Australian citizen for over 12 months prior to the application and refers to evidence in support of this previously provided. It also submits in relation to the issue of waiver of Schedule 3 requirements, that the matters put in the applicant’s request for Ministerial Intervention in June 2012 be taken into account and reiterates these relating to the children of the sponsor and the impact on them. It is submitted that the Ministerial intervention team took all of these matters into account and the applicant’s condition 8503 was waived and that should also be the basis to find compelling reasons to waive the Schedule 3 criteria. Finally the submission reiterates the applicant’s claim to have suffered family violence perpetrated by the sponsor and refers to evidence from the psychologist previously submitted and that he has been seeing various medical doctors for depression.  The enclosed letter from the counsellor indicates he has been seeing the applicant since January 2015.  It provides a background as reported by the applicant.  No evidence of the writer’s qualifications are included with the letter. 

    Tribunal hearing

17. At the commencement of the hearing the applicant provided Statutory Declarations from Mrs Neelu Prasad and Mr Kampta Prasad dated 7 April 2018.  These individuals were present at the hearing, but the Tribunal did not take oral evidence from them.

18. The Tribunal set out the history of the application and the reasons the Federal Court remitted the matter to it for reconsideration. It explained that this means the application is being considered afresh and it has before it the original Department file, the MRT file and documents previously submitted. It explained all of the issues that arise in the application: whether he was in a genuine de factor relationship at the time of application; whether he was in this de facto relationship 12 months prior to that date OR if not, whether there are compelling or compassionate reasons for the grant of the visa; whether he meets the Schedule 3 criteria OR if not, whether there are compelling reasons for not applying those criteria; whether he has suffered family violence in the manner required under the Migration Regulations. It explained that all of these issues arise in his case and the Tribunal must be satisfied he meets all of them for his review to be successful.

19. The applicant told the Tribunal he continues to reside at the same address in [Address 1]. He is not currently in a relationship with anyone and has not been in any relationship since the sponsor left in 2013. He stated that he is not working as he has no permission to work. He is supported by the Indo Fijian Welfare Association. They pay his rent, medical and food expenses. He pays $170 per week rent. When his partner was living with him the rent increased to $200 per week. He indicated that the rent is paid to Mr Maharaj, who is the president of the Indo Fijian Welfare Association. The Tribunal noted that Mr Maharaj was present at the hearing as the applicant’s representative and asked Mr Maharaj whether he is a registered migration agent. He told the Tribunal he is not and claimed he is exempt under the Act from the restrictions on giving immigration assistance as he is a religious worker. The Tribunal indicated that it was not familiar with this exemption. It noted that the Migration Act prohibits persons who are not registered from giving immigration assistance, subject to specific exceptions, and that there are strict penalties for breaching this prohibition. Section 280 of the Migration Act sets this out, and there does not appear to be any specific exception for religious workers.

20. The applicant confirmed that he arrived in Australia in October 2010 on a visitor visa which was valid for one month, to 27 November 2010.  He subsequently applied for [a visa].  His application was refused by the Department and subsequently by the [the] Tribunal.  He has not held any other substantive visa, only bridging visas since then.  The Tribunal put to him that, given the date of lodgement of the present application, being September 2012, being more than 28 days, he does not meet criterion 3001 and therefore he must have compelling reasons for not applying these criteria.

21. The Tribunal asked the applicant about his family circumstances.  He indicated he has a brother in Australia but he is not in contact with him because he is busy with his own family and commitments.  He last saw him in 2010 or 2011.  Apart from his brother he has one cousin in Australia, Kirit Kewel. 

22. The Tribunal asked the applicant about his relationship with the sponsor.  He said they met on 10 April 2011 at a puja (religious function) in Rooty Hill.  She was there alone and they started talking.  After this they went out to a movie in Mt Druitt about a week later.  Later as they got to know one another he found out that she had three young children and was in the process of seeking a divorce. After this their relationship began to develop and she started coming over and staying at his place. She was living in Campbelltown at this time, with her cousin.  The children were living with their paternal grandparents. She started staying with him on and off from May 2011. 

23. The Tribunal asked the applicant when the sponsor came to stay with him full time.  He said she came to stay permanently from May 2012, before that it was only on and off.  About a week after she moved in she brought her children and they were all living together by May 2012.  The Tribunal put to him that at the previous MRT hearing he said she moved in full time from May 2011.  It indicated that in his application form he also said that he commenced a de facto relationship from May 2011. In response the applicant said it has been a long time now and he may be confused and forgetting the dates. He clarified that she was living with him from May 2011, but also was going back and forth at that time. 

24. The Tribunal put to him that in addition to this inconsistency, a number of documents submitted by him in the application indicate that she was not living there prior to 2012. For example the AVO she took out against her ex husband is dated May 2012.  It also has her ex husband’s address the same as the one on her payslip dated July 2012.  The letter from Centrelink dated May 2012 indicates she was paid Single rate of Parenting Payment from February 2012. The Tribunal explained that his inconsistent evidence together with all of these documents may lead the Tribunal to have doubts he is telling the truth about the development of the relationship and it may not accept that they lived together from May 2011 as claimed.  In response the applicant said he provided all the evidence to support they were living together including the lease, rent receipts and photos. He said he has difficulty now remembering exact dates and he believes he has submitted all the evidence he has about this. The Tribunal put to him that the rent receipts showing both names is the only one piece of evidence that  supports her living with him in 2011 and it has a concern about this as it is inconsistent with his earlier evidence about the rate of rent he paid before and after the sponsor came to stay.  He stated he paid $170 per week and it went up to $200 per week when she came to stay.  However the rent receipts and lease document state the rent was $300 per week. This may lead the Tribunal to have concerns about the credibility and reliability of this evidence.

25. The Tribunal discussed with the applicant the financial evidence before it.  He said when they met they were both working and their incomes went into their own bank accounts.  They opened a joint account around the time she came to live with him. The Tribunal noted that the letter he provided indicates this was July 2012, and noted that no statements from this account had been provided. He said he has no statements.  He said he deposited some money into this account but he never accessed it, only she had the card for it. The Tribunal   put to the applicant that the evidence of financial arrangements before it is not strongly supportive of the existence of a genuine de facto relationship, especially the Centrelink letter indicating she was presenting as a single parent and lack of evidence of transactions in a joint account. The applicant said that the sponsor told him when she moved in with him she would tell Centrelink and they would cut her money.  He doesn’t know if she did this.  He said she only provided that letter from Centrelink at the time they were required to provide information to the Department in support of his application for a 8503 waiver. 

26. The Tribunal asked the applicant if he wished to say anything further in support of his claims that the relationship was genuine at time of application and existed 12 months prior.  He said he submitted all the documents he had to provide this already, including the lease document, rent receipts and photos of the family.  He submitted whatever the agent asked him to submit and he has nothing further to add. 

27. The Tribunal asked the applicant about his [previous tribunal] hearing.  It noted that at the previous MRT hearing he indicated that the sponsor did not come with him to this hearing and he did not mention being in a relationship with her and asked why.  He said he was not asked about it.  The [tribunal] only asked about his family in Fiji and his brother here and he answered what he was asked.  The Tribunal asked if, at the time of the [tribunal] hearing, the sponsor was living with him full time.  He said at that time she was still coming and going.  The Tribunal noted that the hearing was October 2011. 

28. It asked him how the relationship with his sponsor came to end.  He said they started to have conflict from around the end of August 2013. She would talk ill about him and wouldn’t cook food for him.  She came home from work screaming abuse at him in front of the children.  She picked up objects and threw them at him. One day his cousin Kirit had come over after visiting Fiji and they were talking. The sponsor came home and threw a shoe at the applicant in front of him.  His cousin told him to go to the police and seek protection.  He went to the police and told them but they did not take a statement and told him to come back when she physically hurt him.  Another day her uncle Kampta was present and the sponsor came home and told him that she had found another man, who is rich, and she was going to have the applicant sent back to Fiji.  He said she threatened him, telling him his days are numbered and that if he tells anyone she will have him killed.  The Tribunal asked the applicant why she changed. He said he does not know.  Prior to August things were okay between them, but then started getting bad.  In September he came home one day and she had taken all her things and left with the children. 

29. The applicant confirmed that he has not seen the sponsor or her children since then.

30. The Tribunal discussed with the applicant the evidentiary requirements to make a family violence claim under the Migration Regulations. It explained that to date he has only submitted two letters, one from a psychologist in 2013 and a counsellor in March 2018. Neither of these documents meet the evidentiary requirements set out in Division 1.5 of the Regulations. He has also not submitted a Statutory Declaration from himself as required. It put to him that on the material before it he has not made a family violence claim. The applicant said he was not aware of the requirements. The Tribunal put to him given the length of time the application has been progressing and that he has taken the matter as far as the Federal Court, it is somewhat surprised that he has not sought advice to provide the necessary documents to date. However, since none of the previous decision makers have determined the matter on this issue, it will allow him a period of 2 weeks to provide further information or evidence on which he seeks to rely. The Tribunal gave the applicant an extract of Division 1.5 of the Migration Regulations and the relevant Statutory Instrument (IMMI12/116). It also explained that if he provides evidence in accordance with the statutory requirements, and the Tribunal is not satisfied that he has suffered family violence it would be required to refer him to an independent expert, on whose opinion it is bound.

1. On 3 May 2018 the Tribunal received a letter and supporting documents from the applicant’s representative.  The covering letter explains that the applicant is unable to afford the fees involved to obtain further migration advice. He therefore submits the following documents on which he relies for his family violence claims:

   ·Declaration from the applicant

   ·Declaration from Veronica Tobin, Psychologist

   ·Certification of Mr Alex Quan of Psychology Headquarters. 

   The submission notes that the welfare officer Mr Rajamani is presently overseas on personal matters and for this reason they have been unable to obtain a Statutory Declaration from him and rely on his earlier letter submitted. The Statutory Declarations of Mr Kampta Prasad and Mrs Neelu Prasad are also referred to in support of the applicant’s claims and the Tribunal is requested to consider the application on the material now before it.

   FINDINGS AND REASONS

2. A number of issues arise in the present case:

   ·whether the applicant was in a defacto relationship with the sponsoring partner at the time of application which has now ceased;

   ·whether that de facto relationship existed for at least 12 months prior to the date of the application; or if not whether there are compelling reasons for the grant of the visa;

   ·whether the applicant meets the Schedule 3 criteria, or if not whether there are compelling reasons for not applying those criteria;

   ·as the applicant has claimed that the relationship has ceased, whether the applicant has suffered family violence in accordance with the requirements set out in Division 1.5 of the Migration Regulations.

3. The delegate determined the application on the basis of not being satisfied that the applicant met cl.820.211(2)(a), r.2.03A(3) or any of the alternate criteria in cl.820.211 because the delegate was not satisfied that the applicant and his sponsoring partner were in a de facto relationship for the 12 months prior to the application and was not satisfied that there were compelling and compassionate reasons to waive the 12 month requirement in r.2.03A(3). The MRT on review, was not satisfied that the applicant and sponsor were in a de facto relationship at the time of the visa application and therefore cl.820.211(2)(a) was not satisfied. Neither of these decision makers considered it necessary to address cl.820.211(2)(d) or to consider whether the applicant met the time of decision criteria, in particular whether the applicant has suffered family violence.

4. The matter has been remitted from the Federal Circuit Court for consideration according to law, and the Tribunal considers all of the issues referred to above are before it. At time of decision the applicant is no longer sponsored by the sponsoring partner and maintains his claim, made to the Department, that he has suffered family violence.  The Tribunal discussed this issue with the applicant at the hearing, alerted him to the evidentiary requirements and defects in the document he had given to date, and gave him an opportunity to provide further evidence on this issue. 

5. For the reasons provided below, the Tribunal concludes that a non-judicially determined claim of family violence has not been made and affirms the decision on that basis. While not strictly necessary given this conclusion, the Tribunal also addresses the issue of whether the applicant and sponsor were in a de facto relationship at time of application and/or 12 months prior and concludes that it is also not satisfied that he meets these requirements, as an alternative basis for his decision. In light of these findings, it does not go only to consider whether the applicant meets cl.820.211(2)(d).

   Has a claim of family violence been made under the regulations?

6. Under r.1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with r.1.24 is provided.

7. The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes (IMMI 12/116).

8. A statutory declaration under r.1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).

9. The Tribunal has considered the evidence submitted by the applicant to date in support of his family violence claims against these evidentiary requirements.  The following evidence is before it:

   ·A statutory declaration from the applicant dated 2 May 2018.

   ·A Statutory Declaration dated 2 May 2018 from Veronica Tobin of Veronica Tobin Psychology, who claims to be a psychologist and states the applicant attended her private practice on 4 occasions in 2013. 

   ·A letter dated 30 April 2018 from Mr Alex Quan of Psychology HeadQuarters, who claims to be a Registered Psychologist and whom the writer has seen for two treatment sessions on 14 and 28 April 2018.  

   ·A letter dated 22 March 2013 from Ms Veronica Tobin, who claims to be  Psychologist.

   ·A letter dated 22 March 2018 from Stayan Rajamani, who claims to be a counsellor.

10. The Tribunal is satisfied that the applicant’s Statutory Declaration dated 2 May 2018 sets out the allegation and names the person alleged to have committed the relevant family violence and therefore meets the requirements in r.1.25.

11. In accordance with the relevant instrument (IMMI 12/116), the applicant is also required to submit two items of evidence of two different types from the list in Schedule 1.  The applicant has submitted a Statutory Declaration from Ms Veronica Tobin who claims to be a registered psychologist and who claims she treated him while performing the duties of a psychologist. However, no evidence has been provided to support the declarant’s registration as a psychologist. The Tribunal is also not satisfied that the declaration includes an opinion that he was subject to family violence, or that it contains details of the reasons or identifies the alleged perpetrator as required by the Instrument. 

12. The Tribunal is also not satisfied that either the letter from Mr Alex Quan or the letter from Stayan Rajamani meet the requirements set out in the Instrument. Specifically Mr Quan’s letter is not in a Statutory Declaration form and also his claimed profession, psychologist, is the same category as Ms Tobin. Stayan Rajamani’s letter is also not in a Statutory Declaration form, and there is no evidence to support his qualifications and eligibility for membership of the Australian Association of Social Workers. For these reasons the evidence presented does not meet the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23.

13. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of  cl.820.221(3) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets the alternative sub criteria.

14. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    Were the parties in a de facto relationship at time of application and for at least 12 months prior?

15. 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.

16. The Tribunal has considered all of the evidence before it relating to the financial, social nature of the household and commitment of the parties.  It has a number of concerns about the credibility and reliability of the applicant’s claims in relation to the commencement of the relationship. For example he provided inconsistent evidence to the MRT and this Tribunal about when the sponsor came to live with him, telling this Tribunal that she came to live with him full time from May 2012, but saying previously to the MRT that they lived together since May 2011.  The documentary evidence he submitted to the Department also contradicts his earlier claim that they were living together from May 2011, indicating that she presented to Centrelink and was paid as a Single parent in February 2012 and her address in the AVO proceedings she was involved in May 2012 did not indicate his address. The Tribunal has considered but gives little weight to the sponsor’s Statutory Declaration dated 2 September 2012 in which she claims they moved in together from May 2011 given that it is inconsistent with other evidence provided. The Tribunal also finds there is little evidence of financial aspects of the relationship that supports the existence of a genuine de facto relationship prior to or even at or since the date of application.  The applicant told the Tribunal in his oral evidence that their incomes from work went into their own bank accounts. He claimed that he deposited money into the joint account but he never accessed it, and has no access to the statements from this account.  On the limited evidence before it therefore, the Tribunal is not satisfied that the financial aspects of the relationship supports the existence of a de facto relationship.  Regarding living arrangements, the applicant has provided a lease and rent receipts. However as discussed with him at the hearing, the rent receipts contradict his oral evidence about the amount of rent he paid and the circumstances in which it was increased, and the Tribunal rejects this evidence and lacking in credibility or reliability on this basis.  The Tribunal acknowledges there is some evidence before it in the form of photos including photos of the applicant with the sponsor’s children and information contained in the Statutory Declarations of Mr Kampta Prasad, Mrs Neelu Prasad and the sponsor herself that suggests  there may have been a relationship of some type in existence between them.  However, given the Tribunal’s concerns about the credibility of the applicant’s claims discussed above and inconsistencies in the evidence,  it is not prepared to accept on the basis of these documents that there was a genuine de facto relationship between the applicant and sponsor at time of application.  While the Tribunal acknowledges that a significant passage of time has now passed since the application was made and the circumstances of the sponsor’s withdrawal of support from the application makes it now very difficult to obtain further evidence, on the limited and contradictory evidence before it the Tribunal is not satisfied that the applicant and sponsor were living together in a de facto relationship at time of application. 

17. On this basis the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time the visa application was made.

18. Given these findings, it is unnecessary for the Tribunal to consider whether the applicant meets the requirements of r.2.03A, being the additional requirement of 12 months for a de facto relationship or compelling reasons for the grant of the visa or whether he meets the Schedule 3 criteria or there are compelling reasons for not applying those requirements for the purposes cl.820.211(2)(d).

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Meena Sripathy
    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).