The Witness Who Was Not There
Tom is an RM preparing a Partner visa application for client Elena. Elena and her sponsor, Mark, have been together for 18 months and live together. They provide: a joint lease (12 months), a joint bank account opened four months ago with modest transactions, statutory declarations from Elena's sister and Mark's friend, photos, and a shared electricity bill. Mark's friend's declaration says he has known them as a couple for 'over two years' and attended their engagement party, but the photos show no engagement party and Elena says there was none. Elena asks Tom to 'leave it, it's just a mistake'. The couple also has a six-month gap in their lease history, which Elena explains as a period when she stayed with her parents after a fight. The Department has requested further evidence of the genuineness of the relationship.
1. How should Tom treat the friend's statutory declaration?
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Tom cannot simply ignore a declaration he knows contains a false statement.
- A statutory declaration is a formal document; a false statement in it may have legal consequences for the declarant and undermines the credibility of the application.
- Tom should raise the discrepancy with Elena and Mark, ask the friend to correct or withdraw the declaration, and not rely on it in its current form.
- He should explain that leaving a known false statement in the application is misleading conduct and could jeopardise the whole application.
- He should document the issue and the steps taken. If the couple insists on relying on it, Tom should consider whether he can continue to act.
2. How should Tom address the six-month gap in the lease history?
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The gap is not necessarily fatal, but it must be explained honestly and consistently.
- Tom should gather corroborating evidence: mail or bank statements showing addresses during the gap, statements from Elena's parents, and any records of the relationship continuing (messages, shared expenses, travel).
- He should not present the gap as continuous cohabitation if it was not. The criterion is about the genuineness of the relationship, and periods of living apart can be explained.
- He should prepare a clear chronology and a statement from each party explaining the separation, and ensure the explanation is consistent with other evidence.
- He should advise the couple that the decision-maker will weigh the whole of the evidence, including the modest joint account and the short lease.
3. What should Tom's response to the Department's request for further evidence contain?
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Tom should respond within the timeframe with a well-organised submission that addresses the specific concerns.
- A cover submission explaining the relationship history, the cohabitation timeline (including the gap), and the financial and social aspects.
- Corrected or additional statutory declarations, with the false declaration withdrawn or corrected.
- Evidence of the joint account's use, the lease, utilities, and any other shared arrangements.
- An explanation of any inconsistency, rather than silence.
- He should keep a copy and record the advice given. He must not overstate the evidence or include anything he knows to be inaccurate.