1513994 (Migration) - [2017] AATA 3036

1513994 (Migration) [2017] AATA 3036 (19 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1513994
MEMBER:Justine Clarke
DATE:19 December 2017
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:
· cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Statement made on 19 December 2017 at 5:17pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Credible witness – Health issues and treatment – Pooled finances – Lived together – Psychologist and social worker’s evidence
LEGISLATION
Migration Act 1958, ss 5F, 65, 359A, 376
Migration Regulations 1994, rr 1.15A, 1.21-1.25, Schedule 2 cl 801.221
CASES
Dang v Minister for Immigration [2016] FCCA 1426
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
The visa [applicant] is [an age] year old national of Vietnam.
[In] October 2012, [the visa applicant] applied for the visa on the basis of her relationship with her sponsor, [Mr A], who is [an age] year old Australian citizen. At the time of application, Class BS contained Subclass 801. 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 include cl.801.221. Clause 801.221(1) requires that, at the time of decision, the applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
The delegate refused to grant the visa on the basis that the applicant did not meet cl.801.221(1) of Schedule 2 to the Regulations. The delegate assessed the application according to the provisions of cl.801.221(2), finding it to be the only subclause relevant to [the applicant’s] circumstances. The primary decision notes that the delegate conducted a telephone interview with [the applicant], via a Vietnamese interpreter, [in] August 2015. In particular, the delegate noted:
You provided evidence of your consultation with [Dr B] regarding your [health] issues, however, during the telephone interview, you stated that you only went to see [the doctor] for a stomach ache, not for [other health] issues. You claimed that your sponsor is also [receiving] treatment, however, no evidence of his treatments has been provided. During the telephone interview, you did not know your engagement or wedding date, and you had little knowledge about your sponsor’s employment history. I note that the documentary evidence you have provided does not support the claims you have made about the financial and social aspects of your relationship. All of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 3036
Decision Date: 19 December 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, Subclass 801 (Spouse). The applicant sought review of a decision concerning her eligibility for the visa, claiming the relationship with the sponsoring partner, Mr. A, had ceased and that she had been a victim of family violence. The core dispute revolved around whether the applicant met the criteria under cl.801.221(6)(b) and (c) of Schedule 2 to the Migration Regulations 1994 (Cth), which require the applicant to have been in a spousal relationship with the sponsor, and for that relationship to have ceased due to family violence.

The Tribunal was required to determine if the applicant was the spouse of the sponsoring partner at the relevant time and, if so, whether the relationship had ceased due to family violence. This involved assessing the existence of a spousal relationship by considering the financial, household, social, and commitment aspects, as outlined in reg.1.15A(3) of the Regulations. A further issue arose concerning a certificate issued under s.376 of the Migration Act 1958 (Cth) by the Department, which sought to prevent disclosure of Mr. A's movement records on public interest grounds.

The Tribunal found that the parties were validly married in July 2012, satisfying the initial requirement for a spousal relationship. Regarding the s.376 certificate, the Tribunal concluded it was invalid as it lacked a proper basis for claiming privilege. The Tribunal noted that Mr. A's movement records, even if considered, showed him departing and returning to Australia in October 2014, with the applicant's movement records mirroring these dates. This evidence suggested the parties travelled together, potentially supporting the existence of a spousal relationship at that time, and therefore did not negatively impact the applicant's case. The Tribunal decided to remit the decision for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant claims the relationship with [Mr A], the visa sponsor, has ceased, and that she has been the victim of family violence. The issue is whether [the applicant] meets cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.Was the applicant the spouse of the sponsoring partner? Clause 801.221(6)(b) requires that, at the time of this decision, the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased. Essentially, the prior existence of a relationship is a precondition to an assessment of family violence. The Tribunal accepts that the parties were married in [an Australian State] [in] July 2012. A certified copy of the registered marriage certificate is on the Department’s file. 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).Regulation 1.15A(3) factors Regulation 1.15A(3)—extracted in the attachment to this decision—provides relevant factors for determining whether a spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the person’s commitment to each other. In assessing these issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files as well as the oral evidence given at the hearing.Section 376 certificate The Department’s file contains a certificate made pursuant to s.376 of the Act. The Tribunal considers that the certificate is invalid. The Department sought to protect the disclosure of a document related to [Mr A’s] movement records on the basis that ‘disclosure of this material would be contrary to the public interest’. The explanation given was that this regards ‘personal information of a third party to the application and the information contained is considered to be in-confidence’. The Tribunal considers this to be a mere description. In the Tribunal’s view it could not form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed. As the Tribunal considers that the certificate is invalid, the existence of the certificate was not discussed at the hearing and the Tribunal has not given [the applicant] a copy of the certificate. The Tribunal considers that the information the subject of the invalid certificate, while relevant, does not engage the Tribunal’s obligations under s.359A of the Act. The records evidence [Mr A] as having departed Australia [in] October 2014 and returned [in a date in] October 2014 (amongst other trips). The Tribunal notes that [the applicant’s] movement records—which are on the Tribunal’s file—evidence her as having departed and re-entered Australia on the same dates in October 2014. It appears that the parties departed and re-entered Australia together. Accordingly, this information would not be the reason, or part of the reason, for affirming the decision under review. To the contrary, the information could be regarded as positive evidence that the parties were in a spousal relationship at that time. The Tribunal has given the material the subject of the certificate no negative weight. Information provided to the Tribunal

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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