Tola (Migration)

[2020] AATA 3493

Tola (Migration) [2020] AATA 3493 (2 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mekdes Getachew Tola

CASE NUMBER:  1910513

DIBP REFERENCE(S):  CLF2019/17371

MEMBER:Ann Duffield

DATE:2 July 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 2 July  2020 at 2.55pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – spouse – valid marriage, separation and divorce – sponsor’s new marriage – claim of family violence – verbal and sexual abuse – statutory declarations by applicant and relevant professionals – evidentiary requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), rr 1.15A(3), 1.21, 1.23, 1.24, 1.25, 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 11 April 2019 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 14 August 2014 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 she and the sponsoring spouse were no longer in a spousal relationship having separated and then divorced on 27 July 2017. The applicant has claimed that the marriage ended as a result of domestic or family violence perpetrated against her by the sponsor.

4. The applicant appeared before the Tribunal on 30 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   BACKGROUND

7. The applicant, through her representative, provided the Tribunal with a copy of the delegate’s decision along with the application for review.

8. The applicant is a citizen of Ethiopia born on 5 June 1970. She arrived in Australia on a subclass 820 visa which was granted on 19 August 2014.

9. The department wrote to the applicant on 21 June 2016 seeking documentation in relation to the assessment of the subclass 801 permanent visa. The applicant submitted various documents up until 28 December 2017.

10. In a statutory declaration dated 14 October 2016 the applicant and the sponsor confirmed that they were in a genuine relationship and marriage. The applicant referred to the existence of a loving relationship with the sponsor.

11. On 29 November 2017 the applicant emailed the department enquiring about the status of her permanent visa application. She did not at that time inform the department that she was already divorced and her marriage had ended as a result of family violence.

12. Asked why she didn’t mention to the department at this time the end of her marriage and divorce or family violence the applicant told the Tribunal that she couldn’t remember.

13. On 25 February 2019 the department wrote to the applicant again, seeking her comments on information that her sponsor advised the department that they had been divorced since 28 July 2017 and he was in another relationship.

14. The applicant responded on 21 March 2019 and the delegate stating that she had been a victim of domestic violence and that she could not report him as she was facing threats from him every day especially from January 2017 to April 2017. She stated that the sponsor could not be trusted as he had signed a statutory declaration in the presence of a JP in October 2016 confirming that they were married yet also signed a court document in Lismore on 1 December 2015 stating that they were separated.

15. Having assessed the information before them, found that the applicant and the sponsor were not in a genuine, continuing and ongoing spousal relationship and refused the visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant and the sponsor were in a genuine, ongoing and exclusive spousal relationship at the time of application and the time of decision.

    SPOUSE/DEFACTO (cl.801.221(2))

    Whether the parties are in a spouse or de facto relationship

17. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse 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 related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

18. ‘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 visa applicant’s and sponsor’s 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?

19. 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 is valid for the purposes of the Act as required by s.5F(2)(a). They were subsequently divorced on 27 July 2017.

    Are the other requirements for a spouse relationship met?

20. The applicant through her representative provided a lengthy submission submitting that the applicant and the sponsor had a genuine, ongoing and exclusive relationship prior to the incidents of alleged domestic violence which the applicant claims as the reason for the marriage ending.

21. Those documents include:

    a.Submission from the applicant through the representative

    b.Relationship history statement by the applicant

    c.Email from the applicant to the department of home affairs dated 21 March 2019

    d.Certificate of marriage

    e.Photos taken in December 2015 and 2016 of the applicant and the sponsor together and with others

    f.Statutory declaration from Helen Bonger dated 5 May 2020 – Miss Bonger states that the applicant is her sister in law and they have known each other for 17 years. She states that the applicant and the sponsor were regular guests at their house and she saw them socially frequently. She states that she believes they were in a true and happy marriage together until the sponsor sent the divorce papers to the applicant in May 2017.

    g.Statutory declaration from Demesw Wederay dated 15 May 2020 – Mr Wederay states that he has known the sponsor since 2010 and the applicant since May 2014. He states that he has seen them together at social gatherings and at shopping centres. He states that he believes that they were genuinely and happily married until the divorce. He states that after the divorce the applicant has been stressed and unhappy

    h.Statutory declaration from Genet Tollas dated 4 May 2020  – Ms Tollas is the applicant’s elder sister and she states that she has known the sponsor since 2010. She claims to have visited the parties at least weekly and invited them over for celebrations. She states that the marriage was genuine and happy and they were planning to have children. She states that the applicant told her she was very sad that she had failed to get pregnant and blamed herself. Ms Tollas states that the applicant and the sponsor loved each other and she never believed that they would break up. She states that the applicant told her over the pone in May 2017 that the sponsor had applied for divorce.

    i.A statutory declaration from Fikru Tola dated 1 May 2020 – the applicant’s younger sister. She states she has known the sponsor since 2010. She states that the applicant and the sponsor visited her regularly at the weekend and for coffee or lunch as well as celebrations. She states that she knows that the applicant and the sponsor lived together as a genuine married couple and every time she saw them they appeared loving and cared for each other. She states that the applicant told her about the divorce in May 2017

    j.Copies of the applicant’s 2015/2016 and 2016/2017 tax returns naming the sponsor as her husband

    k.Letter from the ANZ confirming the applicant and the sponsor opened a joint account in December 2015

    l.Letter from the ANZ confirming the closure of those accounts dated 24 April 2020

    m.Email from the executive housekeep of Mantra

    n.Divorce documents including a letter from the applicant contesting the date of separation

    o.Various documents relating to the spouse application in December 2016

    p.Copies of two ANZ account statements for the period December 2015 to June 2016 – they appear to show only one person’s pay being deposited regularly and then the full amount withdrawn every few weeks. The applicant said that it was a joint account he had his own bank account that’s why it was closed. A second statement for a saver account has no deposits or withdrawals.

    q.Copies of the applicant and the sponsor’s statutory declarations dated October 2016 in support of their partner application

    r.Various other documents from the department of home affairs including case notes and letters to the applicant

22. 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.

23. The Tribunal has considered the bank statements provided by the applicant and finds them inconclusive in respect to evidence of the sharing of financial resources. The applicant told the Tribunal that they each had separate bank accounts along with their joint account. She said that the applicant did not contribute to their joint account but kept his own account. She said that only her pay went into the joint account. She did not indicate why and for what purpose the funds were withdrawn at regular intervals. The applicant told the Tribunal that she didn’t know what the sponsor was doing with his bank accounts. She told the Tribunal that they did not share any other assets. For example, each had their own cars.

24. The Tribunal is not satisfied that the financial aspects of the parties’ relationship supporting a finding that they were in a genuine relationship or that they saw that relationship as long term.

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 asked the applicant if she and the applicant had a tenancy agreement on the house they shared, in both names and she didn’t respond. The Tribunal has evidence that a variety of documents have been sent to and sent by the applicant at her address and the sponsor has signed a statutory declaration giving the same address. Other evidence showing a joint address is the ANZ joint bank account. The Tribunal also notes that the statutory declarations from the applicant’s friends have them sharing a house together. The sponsor also gave the address of the applicant’s house on his incoming passenger card. The Tribunal accepts that the parties shared accommodation for a period of time.

27. The parties have no joint children together and gave little other compelling evidence of the nature of their household.

28. The Tribunal has considered the social aspects of the relationship - including whether parties represent themselves to other people as being married to 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. There are a number of statements from the applicant’s family and friends along with photographs of the couple together and with others. Those statements all state that the applicant and the sponsor were in a genuine marriage and that they saw the couple as loving and caring towards each other. Those statements attest to the parties attending social and community functions together and joining in family celebrations. None of the statements indicate any discord between the two at any time and only state that the coupled lived together until the applicant told them of the divorce in May 2017. Equally none of the statements indicate that the applicant had suffered family violence. The Tribunal asked the applicant why none of her family had indicated that her marriage had ended as a result of family violence and she said that she didn’t want to tell anyone because her ex-husband, the sponsor, had threatened to cancel her visa. The Tribunal put to the applicant that he had already done that and as the statutory declarations were dated May 2020, it seemed unusual that none of her family would mention the domestic violence. She said that they mentioned it in their statements of 2017. The Tribunal could find no statutory declarations from the above-mentioned declarants dated 2017 and none others that mentioned family violence between the parties.

30. The Tribunal finds that the fact that none of them mentioned the alleged family violence and indeed all are written in similar terms, points to the declarants being directed what to say. In the Tribunal’s mind this lends those statements less weight than might otherwise be the case.

31. The Tribunal puts some weight on the fact that the applicant’s friends are prepared to testify that she and the sponsor presented themselves as a married couple, however it gives little weight to the statements regarding the nature of their relationship as that information appears to have been selective and incomplete.

32. 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.

33. The Tribunal discussed with the applicant the dispute about the end date of the marriage. The applicant submits that the sponsor made a false declaration to the courts by stating that his marriage to the applicant ended in December 2015.  The applicant has provided other documents, including statutory declarations from them both to the department of immigration in support of their permanent spouse visa application, dated October 2016, that they were in a committed spousal relationship. There is also a copy of an application for a joint bank account in December 2016 in the names of the applicant and the sponsor.

34. The Tribunal is prepared to accept that the sponsor has clearly made misleading statements, either to the courts in relation to his filing for divorce or the department in relation to his relationship with the applicant.

35. During the hearing the applicant re-iterated her view that she was unaware that her marriage was over until she received the divorce papers in May 2017. She claims that until that time she was preparing to travel to Melbourne to be with the sponsor as he had moved there for work. The Tribunal put to the applicant that the sponsor had, in her words, “disappeared” in January 2017 and she didn’t know where he was. The Tribunal asked the applicant what kind of marriage was it that meant she had no idea where her husband was. She said she didn’t know anything about his affair until her representative gave her the information. She said that as far as she knew, she was still in a marriage. The Tribunal put to the applicant that according to the Migration Act the marriage must be “exclusive of all others” and even if she may not have been aware of her husband’s new relationship this in itself indicated that there was no mutual commitment to the marriage.

36. The applicant submits that she and the sponsor were still in a committed relationship until May 2017. She claims she knew nothing about anyone else until recently.

37. The Tribunal has formed a view that despite the applicant’s assertion that she was in a genuine ongoing and exclusive relationship, this was clearly not the case. The sponsor had committed to a new relationship in February 2017, became engaged to that person on 17 February 2017, married on 29 January 2018 and that he and his new partner have a child together born on 24 October 2017. According to a document provided to the Tribunal by the applicant, the sponsor met his new partner in December 2015 and was sending money to her in 2015 and 2016. The applicant submits that despite this the sponsor listed their joint address on his incoming passenger card when he returned to Australia in March 2017 and this demonstrates that they were still in a spousal relationship as defined by the Migration Act. The applicant submits that the sponsor’s relationship with his new partner should be considered as merely an act of infidelity which does not, according to previous judicial decisions, amount to the end of their relationship.

38. The Tribunal does not share this view that the sponsor’s new relationship amounts to mere infidelity. He and his new partner have a child together, conceived whilst he was visiting Ethiopia in January 2017. He has subsequently married that partner and applied to sponsor that partner to Australia. Documents provided by the applicant indicate that he claims to have first met his new partner in December 2015 and had sent money to her in 2015-2016.

39. In the Tribunal’s mind, in fact, and in degree, this is not infidelity but an entirely new and committed relationship. In the Tribunal’s mind, the degree and fact of the sponsor’s new relationship indicates at best that the relationship with the applicant was not exclusive, and hence the submissions of the applicant have lesser weight or at worst is an indication that the relationship between the applicant and the sponsor had broken down irretrievably well before that time, potentially as early as December 2015.

40. Having weighed all the evidence, both oral and documented, and considering all aspects of the relationship, the Tribunal is not satisfied that the parties had a mutual commitment to a shared life together to the exclusion of others. The Tribunal is not satisfied that they have or had, a genuine and continuing relationship and the tribunal is not satisfied that they live together.

1. Given these findings the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant does not meet cl.801.221(2)(c).

2. In any event, the Tribunal has gone on to consider the domestic violence claims for the sake of completeness.

3. Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in r.1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).

4. In the present case the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence.

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

5. 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.

6. 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.

7. 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).

   Submission in relation to claims of domestic violence.

8. The applicant through her representative has made significant submissions in relation to the alleged domestic violence perpetrated against the applicant by the sponsor which is stated to have occurred between around December 2016 to April 2017. The applicant through her adviser has demonstrated a clear understanding of the evidentiary requirements needed to make a non-judicial claim of domestic violence. This is demonstrated in the manner in which the documents were requested from the relevant persons by the representative and the fact that the representative provided those persons with copies of the statutory requirements and the direction of the Tribunal President in relation to the presentation of the evidentiary requirements. The Tribunal is therefore satisfied that the applicant was and is aware of the evidentiary requirements and has had sufficient opportunity and assistance in gathering the required evidence.

9. In order to support the non-judicial claim of family violence the applicant has provided a statutory declaration completed on Form 1410 dated 13 June 2020. In that statement the applicant identifies the sponsor as the alleged perpetrator; states the relationship ended in May 2017 as a result of domestic violence;

   a.The applicant states that the family violence started at the end of 2016 until around April 2017 when the sponsor departed the family home for Melbourne.

   b.She states that her relationship with the sponsor ended in May 2017 when she received divorce papers and claims that until this time they were in a genuine relationship.

   c.She states that the sponsor started to verbally abuse her and became angry. She states that the sponsor then disappeared to Ethiopia in January 2017 without telling her. When he returned in March 2017, he started yelling at her, slapping and beating her and forced her to have sex with him.

   d.The applicant claims that he would cancel his sponsorship and have her deported if she reported him to the police or told anyone.

   e.She states that she lived in fear that he might hurt her. She has lost confidence in herself

10. The applicant also provided a statutory declaration and report from psychologist Jillian Scott stating that in her opinion the applicant was subject to family violence perpetrated against her by the sponsor. Ms Scott provides detailed reasons as to why she has formed that opinion and has provided details of her qualifications and experience. This document meets the evidentiary requirements.

11. The applicant has provided a letter and statutory declaration from Dr Dawit Berhe, the applicant’s treating GP who referred the applicant to a psychologist and provided several mental health plans for the applicant whom he identified as having “Mixed anxiety and depression”. He does not identify the reasons for these conditions in any of the mental health plans he has provided.

12. Dr Berhe has provided a statutory declaration in which he records the applicant’s diagnosis “in the context of marital discord and abusive relationship since January 2017”. He does not identify the alleged perpetrator nor provide any details of the alleged family or domestic violence. Dr Berhe declines to state, despite being invited to do so by the applicant’s representative, an opinion that the applicant has been the victim of domestic violence.

13. The Tribunal asked the applicant, and her adviser, whether they wanted to comment on these documents. The Tribunal put to the applicant that the statement by Dr Berhe did not meet the requirements despite him having been given the templates and instructions by the representative. The representative told the Tribunal that he had indeed tried to assist Dr Berhe in the provision of his statement and asked for some additional time to approach Dr Berhe to have him include the relevant information.

14. The Tribunal refused that request putting to the applicant that her representative had provided Dr Berhe with a document produced by the AAT that provided guidelines to persons giving expert and opinion evidence along with a letter with instructions about what the stator declaration should include. The Tribunal put to the applicant that approaching Dr Berhe again with further instructions about what he is required to say may be seen as directing a witness.

15. The Tribunal considers that Dr Berhe has been given ample guidance and information about the nature and content that would meet the evidentiary requirements and has nevertheless chosen to provide the statement that he has provided.

16. This document does not meet the evidentiary requirements.

17. Therefore, 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.

    CONCLUSION

18. Given the above conclusions, the applicant does not meet the requirements of cl.801.221(2) or  cl.801.221(6)(b) and (c) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    DECISION

19. 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

    1.15A     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).