1612315 (Migration)

[2018] AATA 700

1612315 (Migration) [2018] AATA 700 (13 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612315

MEMBER:K. Chapman

DATE:13 March 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl.820.211(2) of Schedule 2 to the Regulations; and

·cl.820.221(3) of Schedule 2 to the Regulations.

Statement made on 13 March 2018 at 2:59pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 visa – Relationship ceased –
Family violence victim – Previously lived with the sponsor’s mother – Financial aspects – Shared expenses – Supported sponsor’s business

LEGISLATION

Family Law Act 1975
Migration Act 1958, ss 5F, 65, 359
Migration Regulations 1994, rr 1.15A, 1.21, 1.23 Schedule 2 cls 820.211, 820.221

CASES
Jayasinghe v MIMA [2006] FCA 1700

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 made by a delegate of the Minister for Immigration on 25 July 2016 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 12 December 2015 on the basis of the relationship with her [sponsor]. At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’).

3. 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. Relevantly to this matter the primary criteria include cl.820.211 and 820.221 which require that at the time of application and decision, the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in her case.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(a). Whilst satisfied the applicant was married to the sponsor at the time of the visa application, the delegate was not satisfied that they were in a genuine and continuing spousal relationship as required by s.5F of the Act. On 9 August 2016, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application.

5. On 4 January 2018, pursuant to s.359(2) of the Act, the Tribunal invited the applicant to provide further information in support of her claims that she was in a spousal relationship with the sponsor at the time of the visa application. Following the grant of an extension of time to respond, on 1 February 2018 the applicant provided a response including written submissions and voluminous documentary evidence. The aforementioned material has been duly considered by the Tribunal. The applicant appeared before the Tribunal on 2 March 2018 to give evidence and present arguments. She was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, the applicant claims the relationship with the sponsor has ceased and she has been the victim of family violence. For visa applications made on or after 9 November 2009, the Regulations explicitly require family violence to have occurred when the spousal relationship was still in existence. The spousal relationship must therefore have existed before it can be determined that it has ceased. If the Tribunal is not satisfied that a spousal relationship existed, the family violence exception to the continuing relationship requirement will not be available: r.1.23(3), (5), (7), (12) and (14).

8. Therefore, the issues in the present matter concern whether the applicant was in a spousal relationship with the sponsor at the time of the visa application, and whether she may avail herself of the ‘family violence’ exception to the requirement to have maintained the spousal relationship at the time of this decision.

   Whether the parties were in a spouse or de facto relationship

9. As is relevant to the present application, clause 820.211(2)(a) requires that at the time the visa application was made 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 at the time of the visa application to be the spouse of the sponsor, who is an Australian citizen.

10. ‘Spouse’ is defined in s.5F of the Act which 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 husband and wife 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 as to 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).

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The Tribunal is satisfied on the evidence before it that the applicant and sponsor married on 25 November 2015 in Queensland. 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).

    Are the other requirements for a spousal relationship met?

12. In assessing whether the applicant and sponsor have been in a spousal relationship, the Tribunal has considered the documentary evidence submitted with the primary application, additional documentary evidence that was provided to the Tribunal and the oral evidence given during the review hearing. Having regard to the principles outlined in the decision of Jayasinghe v MIMA [2006] FCA 1700, when considering the circumstances of the relationship at the time of the visa application, the Tribunal has had regard to later events as they tend logically to show the existence of prior facts. The Tribunal observes this is a matter where the applicant submitted limited documentary evidence in support of her visa application to the Department of Immigration and then furnished the Tribunal with more extensive evidence that was unavailable to the primary decision maker.

    Financial aspects of the relationship

13. The Tribunal had limited documentary evidence before it concerning the financial aspects of the relationship, particularly with regard to the time of application. Regarding the early stages of the relationship, the documentary evidence primarily concerned receipts for the purchase of consumer items. In the period following the time of application, documentary evidence such as that regarding the joint purchase of a motor vehicle, insurance policy beneficiary status and joint bank account use suggests a degree of entwinement of the applicant’s and sponsor’s financial affairs. Whilst the aforementioned documentary evidence is limited, it must be considered in the context of the weak financial position of the parties during the relationship which was highlighted in the oral evidence of the applicant. She advised the Tribunal that she did not undertake paid employment until the final stages of the relationship. Rather, she assisted the sponsor in his business on an unpaid basis. That business was financially unsuccessful with the consequence that the parties had little in the way of funds to utilise.

14. The applicant and sponsor lived with the latter’s mother at her invitation and only made limited financial contributions to the household given their straitened circumstances. They were not required to pay rent, and made only sporadic contributions towards food and utility costs. Thus, the activity on their joint bank account was minimal. The joint purchase of a vehicle on 1 April 2016 for $2,500 was therefore of significance given the parties overall financial position. The Tribunal observed the applicant to provide a detailed account of the financial aspects of the relationship and has assessed her to be a truthful witness. Accordingly, the Tribunal accepts her evidence as to why the documentary evidence in support of the financial aspects of the relationship is limited. That the applicant and the sponsor were impoverished during the course of their relationship should not be cause to assume they did not enmesh their finances in a meaningful fashion. Rather, a careful consideration of the particular circumstances of the matter must be undertaken. Following such consideration, the Tribunal affords medium weight to the evidence in support of the financial aspects of the relationship.

    Nature of the household

15. The Tribunal had a degree of documentary evidence before it indicating the applicant and sponsor resided together during the course of their relationship. Form 888 Statutory Declarations from[Mr A] , [Ms B]and [Ms C](the sponsor’s mother) indicate the applicant and sponsor resided together from September 2015. Importantly, the Declarations confirm the sponsor’s mother lived with the couple. In particular, the Tribunal has no reason to doubt the veracity of the Declaration of [Ms C]wherein she declares to be living with her son and the applicant. Bank, Medicare, transportation, charity, superannuation and university records support the contention that the applicant and sponsor resided together from September 2015 until the relationship ceased. The oral evidence of the applicant was consistent with the aforementioned documentary evidence and indicated that the couple shared household responsibilities. The Tribunal accepts that the applicant provided a truthful account of her residential situation. As previously noted, given the couple resided with the sponsor’s mother the documentary evidence regarding the financial aspects of the joint household was somewhat limited. The Tribunal considers that such limitation does not detract from the veracity of the applicant’s account. After careful consideration, the Tribunal places medium weight upon the evidence in support of the nature of the household.

    Social aspects of the relationship

16. The applicant submitted documentary evidence such as travel documents, celebratory cards and photographs in support of the social aspects of the relationship. The photographs depict the couple in social situations such as on holiday [overseas]during November 2014, where they are shown with friends of the applicant and at a theme park, and with members of the sponsor’s family, including his mother and adult son. The photographs demonstrate that the couple were married at [ a location]amongst family and friends. The Tribunal notes that a selection of photographs was also presented at the review hearing which further illustrated the couple in social settings. The Form 888 Statutory declarations described above also confirm the applicant was well known to the mother of the sponsor and two mutual friends. The applicant also provided oral evidence consistent with the documentary evidence. After careful consideration, the Tribunal places high weight on the evidence in support of the social aspects of the relationship. 

    Nature of persons’ commitment to each other

17. The applicant submitted extensive social media records which demonstrate that the couple were in regular contact with each other from late 2014 until the relationship concluded in May 2016. Personal statements of the applicant and sponsor suggest they drew companionship and emotional support from each other and that they viewed the relationship as long term in its earlier days. The documentary evidence referred to above is also supportive of the applicant being in a committed relationship with the sponsor until it concluded due to family violence. The oral evidence of the applicant concerning her commitment to the sponsor was delivered in a frank fashion with significant detail provided. She indicated that she stuck with the sponsor and assisted him in circumstances where their business failed and they were impoverished. The applicant stated she still loved the sponsor but could not return to the relationship due to her suffering family violence. Her evidence was compelling and the Tribunal finds she was a truthful witness. After careful consideration, the Tribunal places high weight upon the evidence in support of the nature of the persons’ commitment to each other. 

    Conclusion concerning the existence of a spousal relationship

18. Having regard to the matters above, the Tribunal is satisfied that the applicant was validly married to the sponsor, they had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship between them was genuine and continuing up until the point that it ceased. The Tribunal is also satisfied that the couple lived together from September 2015 until the relationship broke down due to family violence. The Tribunal is therefore satisfied that the requirements of s.5F(2)(a)-(d) of the Act were met at the time of the visa application and were also met until the relationship ended.

19. Given these findings the Tribunal is satisfied that at the time the visa application was made, and until the time the relationship finished, [the applicant] and [the sponsor] were in a spousal relationship as defined in the Act. The Tribunal is also satisfied that [the sponsor] was aged over 18 years when he sponsored [the applicant], and further that he is not prohibited from being a sponsoring partner. Therefore the Tribunal finds that [the applicant] meets the requirements of clause 820.211(2).

    Is the family violence exception to the continuing relationship requirement established?

20. On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a spousal relationship and that this relationship has ceased. One issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

21. 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) and (14).

22. In the present case the applicant is seeking to establish family violence on the basis of evidence tested before a Court. Acceptable forms of court tested evidence as set out in r.1.23 are: a court injunction under the Family Law Act 1975; an Australian Court order for the protection of the alleged victim; or a conviction or finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim. Where such evidence is provided, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence: r.1.23(1). It is not for the Tribunal to look behind an Order or finding of guilt made by the Court.

23. [Paragraph deleted].

24. After careful consideration of the above factors, the Tribunal finds that the applicant satisfies the requirements of cl.820.221(3)(b)(i).

    CONCLUSION

25. The relationship between the applicant and sponsor was a spousal relationship at the time of the visa application and the sponsor was an eligible adult sponsor. Accordingly, the applicant meets the requirements of cl.820.211(2). As that relationship has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl.820.221(3)(a) and (3)(b)(i).

26. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the Subclass 820 visa.

    DECISION

27. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl.820.211(2) of Schedule 2 to the Regulations; and

    ·cl.820.221(3) of Schedule 2 to the Regulations.

    K. Chapman
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21 Interpretation

    …

    non-judicially determined claim of family violence has the meaning given by subregulations  1.23(8) and (9).

    relevant family violence means conduct, whether actual or threatened, towards:

    (a)the alleged victim; or

    (b)a member of the family unit of the alleged victim; or

    (c)a member of the family unit of the alleged perpetrator; or

    (d)the property of the alleged victim; or

    (e)the property of a member of the family unit of the alleged victim; or

    (f)the property of a member of the family unit of the alleged perpetrator;

    that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

    …

    violence includes a threat of violence.

    …

    1.23     When is a person taken to have suffered or committed family violence?

    (1)For the purposes of these Regulations:

    (a)a person (the alleged victim) is taken to have suffered family violence; and

    (b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.

    Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.

    Circumstances in which family violence is suffered and committed — injunction under Family Law Act 1975

    (2)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.

    (3)For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.

    Circumstances in which family violence is suffered and committed — court order

    (4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and

    (b)[…] order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.

    (5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — conviction

    (6)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:

    (a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or

    (b)recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.

    (7)For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — non-judicially determined claim of family violence

    (8)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.

    (9)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim is:

    (i)       a spouse or de facto partner of the alleged perpetrator; or

    (ii)      a dependent child of:

    (A)the alleged perpetrator; or

    (B)the spouse or de facto partner of the alleged perpetrator; or

    (C)both the alleged perpetrator and his or her spouse or de facto partner; or

    (iii)     a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and

    (c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:

    (i)       the alleged victim has suffered relevant family violence; and

    (ii)      the alleged perpetrator committed that relevant family violence.

    (10)If an application for a visa includes a non-judicially determined claim of family violence:

    (a)the Minister must consider whether the alleged victim has suffered relevant family violence; and

    (b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

    (c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

    (i)       the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

    (ii)      the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.

    (11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.

    (12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    (13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.

    (14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.