Reyes (Migration)

[2019] AATA 2010

Reyes (Migration) [2019] AATA 2010 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maria Bella Reyes

CASE NUMBER:  1719323

HOME AFFAIRS REFERENCE(S):           BCC2015/3584376

MEMBER:Ann Duffield

DATE:10 April 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 10 April 2019 at 1:39pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – Sponsorship withdrawn – relationship ceased – parties filed for divorce – alleged domestic violence– Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5F, 65, 375
Migration Regulations 1994, r 1.15A, Schedule 2, cls 820.211, 820.221

CASES
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 and Border Protection 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 29 November 2015 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 (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 visa applicant did not satisfy cl.820.211 because the sponsor withdrew his support citing domestic violence against him supported by a restraining order against the applicant.

4. The applicant appeared before the Tribunal on 10 April 2019 to give evidence and present arguments. The Tribunal also heard oral evidence from a witness on behalf of the applicant.

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

   BACKGROUND

6. The applicant provided the Tribunal with a copy of the delegate’s decision along with her application for review.

7. The applicant is a citizen of the Philippines. The sponsor is a citizen of Australia born on 25 July 1936 (82 years old). The parties first met on a dating website in April 2015 and met face to face in August 2015. They were married in November 2015 in Australia.

8. On 16 October 2016 the sponsor contacted the Department withdrawing his support, and informed them that he had taken out a restraining order against her because of her violence towards him. He told the Department that she left their home on 6 October 2016.

9. Information put to the applicant by the delegate was that they had numerous allegations that she contrived her marriage to the sponsor from the outset and that she is currently living with another man. The delegate also sought her response to information that Bundaberg Police found that she was the aggressor in relation to their attendance to a domestic violence call. There is a Protection Order, at Folio 114 of the Department’s file, dated 14 September 2016 against the applicant instructing her to be of good behaviour towards the sponsor and not commit domestic violence against him. The Order was in force until 14 September 2018.

10. The parties filed for divorce in around March 2018. The divorce documents note that there is a Protection Order against the applicant in favour of the sponsor.

11. In her response to the Department’s letter the applicant claimed to be a victim of family violence however that claim was not assessed as the delegate found that the parties were not in a genuine, continuing and exclusive spousal relationship, as envisaged by the Migration Act, at the time of the alleged domestic violence.

12. The applicant wrote to the Tribunal claiming that the sponsor had been financially, socially and emotionally abusive towards her. She claims that he isolated her from her children and would get angry if she spoke to them She claimed that she had been warned that he was an abusive man by members of the church and others and that she was the eleventh (11^th) woman he had been with. The applicant claims that the sponsor only married her to be his carer not his wife. The statement is unsworn.

13. The applicant has not provided any of the required documents to support either a judicial or non-judicial claim of domestic violence.

14. The Tribunal gave the applicant a copy of the s.375(a) certificate which the delegate placed over numerous folios in their file. The Tribunal informed the applicant that it was satisfied that the certificate was valid. The Tribunal also put to the applicant the gist of the information that was covered by that certificate noting that it had also been put to her by the delegate for comment, prior to a decision on her application being made.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant was the spouse of the sponsor within the meaning of the Migration Act at the time of application and at the time of this decision.

    Whether the parties are in a spouse or de facto relationship

16. Clauses 820.211 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 spouse of the sponsor who is an Australian citizen.

17. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had 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.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, the parties were married to each other under a marriage that was valid for the purposes of the Act as required by s.5F(2)(a). The Tribunal notes that the parties have also recently filed for divorce.

    Are the other requirements for a spouse relationship met?

19. The Tribunal took oral evidence form the applicant and a witness on her behalf. For the following reasons the Tribunal finds that the parties were not in a spousal relationship, as envisaged by the Migration Act, at the time of application or at the time of this decision.

20. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

21. The Tribunal found little documentary evidence to support this aspect and indeed the applicant told the Tribunal that she had no money at the time of their marriage and the sponsor paid for everything. She claimed that they had not shared any expenses and she brought no money with her from the Philippines.

22. The parties have no joint savings or assets and no joint liabilities. The applicant told the Tribunal that the sponsor told her that he did not trust her enough to have a joint account. 

23. The evidence before the Tribunal does not suggest a shared life or shared resources, but, in the Tribunal’s mind this may be in part due to the brevity of their marriage. The applicant told the Tribunal that since she left the sponsor and his controlling ways she has been working and studying and looking after herself financially.

24. However, in the totality of the parties’ circumstances, and keeping in mind the applicant’s claim of an overbearing husband, the Tribunal is nonetheless not satisfied that the financial aspects of the parties relationship supports a finding that they have a mutual commitment to a shared life together to the exclusion of all others.

25. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

26. The Tribunal has considered the nature of the parties’ household and notes that they lived together for approximately one year. During that time they each had their own rooms and the applicant did all the housework and looked after the garden. She told the Tribunal that she came to believe that the sponsor was only looking for a carer in his old age and did not intend for her to be his wife.

27. In any event, there is insufficient evidence before the Tribunal to make a finding that the parties had a joint commitment to a shared life together to the exclusion of all others.

28. The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

29. The applicant claims that she and the sponsor had few friends or social engagements except through their local church. There are some statements from friends or acquaintances to support this aspect of the parties relationship and the Tribunal gives these some weight.

30. The Tribunal has considered the nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

31. The evidence before the Tribunal is that neither party saw their relationship in the way envisaged by the Migration Act. Information before the Tribunal is that the marriage was contrived by the applicant for the purposes of achieving a migration outcome. This has been strenuously denied by her to the delegate and the Tribunal. On the other hand, the applicant stated that she believed that the sponsor did not want a wife but a carer for himself in his old age. To this end the applicant told the Tribunal that the sponsor encouraged her to enrol in and attend a Certificate III in Aged Care so that she could look after him properly.

32. It seems evident to the Tribunal that, whichever statement is true, there was no mutuality of commitment to a shared life together as husband and wife, or indeed a mutual understanding as to what the nature of their marriage or married life would be.

33. There is a Protection Order against the applicant in favour of the sponsor and they have filed for divorce. They lived together, in separate rooms according to the applicant, for around 12 months before the applicant left the marital home in October 2016.

34. Oral evidence from the applicant’s witness is that the sponsor was known as a difficult man and that she herself witnessed firsthand the controlling nature of the sponsor towards the applicant to the extent that the applicant frequently came to her house for support.

35. The Tribunal accepts this but also notes that at no time did either the applicant or the witness find the sponsor’s behaviour such that it warranted an intervention by appropriate authorities. Indeed, there was no suggestion or consideration by either the applicant or her friend that the applicant could or should leave the marriage.

36. Having considered all of the evidence before it, the Tribunal finds there is insufficient evidence to support a claim that the parties were in a genuine and continuing marriage at the time of the alleged domestic violence.

37. The Tribunal is not satisfied that the parties did, or do, have a mutual commitment to a shared life together to the exclusion of all others. The Tribunal is not satisfied that the parties do not live separately and apart on a permanent basis and the Tribunal is not satisfied that the parties’ relationship is ongoing.

38. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at either at the time the visa application was made or at the time of this decision.

39. Therefore the applicant does not meet cl.820.211 or cl.820.221.

40. Since the Tribunal has found that the parties were not in the required relationship at the time of the alleged family violence, the Tribunal is not required to turn its mind to that matter.

41. However, for the purposes of completeness, the Tribunal put to the applicant the types of documents that she would be required to submit to the Tribunal in order to sustain either a judicial or non-judicial claim of domestic violence. The Tribunal put to her that the documents she had provided did not meet those requirements. The applicant told the Tribunal that she had no intention of trying to obtain the necessary documents as she was moving on with her life and did not want any further contact with the sponsor.

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 (Temporary) (Class UK) visa.

    Ann Duffield
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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).