1701509 (Migration) - [2018] AATA 2115

1701509 (Migration) [2018] AATA 2115 (7 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1701509
MEMBER:Kate Millar
DATE:7 March 2018
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa

STATEMENT MADE ON 07 MARCH 2018 AT 9:30AM
CATCHWORDS
Migration – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – Whether there was a spousal relationship–Sponsorship withdrawal – No joint assets or liabilities – Lived together for a period of time – Family Violence claims – Practice and procedure – Request for further information – Extension of time – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 359AA
Migration Regulations 1994, r 1.15A Schedule 2 cls 801.211, 801.221
CASES
Hanna v Minister for Immigration and Border Protection [2016] FCA 282
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 and Border Protection on 17 January 2017 to refuse to grant [the applicant] a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] applied for the visa on 24 July 2014 on the basis of his relationship with his sponsor, [Ms A]. At that time, 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).
To be granted this visa, [the applicant] must meet the primary criteria in Part 801. The primary criteria include, at cl.801.221, a requirement for the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These circumstances include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.801.221(6)(b) and (c)(i). [The applicant] claims he has suffered family violence committed by [Ms A].
The delegate refused to grant the visa on the basis that [the applicant] did not meet cl.801.221 as the delegate was not satisfied that there was a genuine spouse relationship between [Ms A] and [the applicant] prior to the breakdown of the relationship.
HISTORY OF THE RELATIONSHIP
[The applicant] said he met [Ms A] when she visited Cambodia with a relative in May 2013. He said they got along well and started a relationship, exchanging phone numbers and Facebook details. After [Ms A] returned to Australia they continued communicating two to three times a day after work. [Ms A] retuned to Cambodia and they had an engagement ceremony after which [Ms A] sponsored him for a spouse visa. He arrived in Australia on 7 January 2014 and started work in a [factory]. They initially lived with [Ms A]’s sister as the…

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.

Continue reading 1701509 (Migration)

Details

AGLC: 1701509 (Migration) [2018] AATA 2115
Case: [2018] AATA 2115
Decision Date: 7 March 2018

CaseChat Overview and Summary

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801 (Spouse), by an applicant who claimed the relationship with his sponsoring partner had ceased due to family violence. The applicant sought to satisfy the criteria under cl.801.221(6) of Schedule 2 to the Migration Regulations 1994, which allows for the grant of the visa if the applicant would otherwise meet the requirements but for the cessation of the relationship and suffering family violence from the sponsoring partner. The decision was made by Kate Millar, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had established that he was in a spouse relationship with his sponsoring partner, Ms A, as defined by s.5F of the Migration Act 1958. This definition requires that persons be married to each other under a valid marriage, have a mutual commitment to a shared life to the exclusion of all others, maintain a genuine and continuing relationship, and live together or not live separately and apart on a permanent basis. The Tribunal also had to consider the factors outlined in r.1.15A(3) of the Regulations, including the financial and social aspects of the relationship and the parties' commitment to each other.

The Tribunal found that while the applicant and Ms A were validly married in Australia, the evidence did not satisfy the requirements of a spouse relationship as defined in s.5F of the Act. Specifically, the Tribunal was not satisfied that the parties had a mutual commitment to a shared life to the exclusion of all others, that the relationship was genuine and continuing, or that they lived together or did not live separately and apart on a permanent basis, after considering the various factors including financial aspects. Consequently, the applicant did not meet the essential criterion under cl.801.221(6). As the applicant failed to establish he was in a spouse relationship, the Tribunal did not need to consider the claims of family violence.

The Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa, subclass 801, on the basis that he had not met the essential criteria for the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Real consideration was given as to whether [the applicant] has lost his right to a hearing as he had not provided the information requested of him within the required time, in the context of numerous requests for this information from both the Department and the Tribunal. As it is no small matter to lose the right to a hearing, [the applicant] was given the benefit of the doubt and a hearing was held on 23 January 2018, at which [the applicant] sought further time to establish his claims of family violence. [The applicant] was provided with seven days after the hearing to provide any further information, and submissions and further statutory declarations were provided on 30 January 2018. CONSIDERATION OF CLAIMS AND EVIDENCE In the present case, [the applicant] claims the relationship with [Ms A] has ceased, and he has been the victim of family violence. He seeks to satisfy the requirements in cl.801.211(6) which are:· He would meet the requirements in cl.801.211(2), except that:o The relationship between him and his sponsoring partner has ceased; ando He has suffered family violence committed by the sponsoring partner. The first requirement is that he would meet the requirements of cl.820.221(2). This requires that he was in a spouse relationship with [Ms A] prior to it ceasing.[1] [1] Hanna v Minister for Immigration and Border Protection [2016] FCA 282 at [23]. The delegate was not satisfied [the applicant] was in a spouse relationship with [Ms A] as defined in the Act and the Regulations. ‘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. People in a married relationship must:· Be married to each other under a marriage that is valid for the purposes of the Act;· Have a mutual commitment to a shared life as husband and wife to the exclusion of all others; · Have a genuine and continuing relationship; and · Live together or not live separately and apart on a permanent basis. 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 applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3) of the Regulations. Against the history provided by [the applicant], it must be determined if he was the spouse of [Ms A] before the relationship broke down. Are the parties validly married? [The applicant] and [Ms A] were married in Australia on [date] March 2014 and [the applicant] provided a copy of their marriage certificate. 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 The factors in r.1.15A(3) must be taken into account in deciding if the parties had a mutual commitment to a shared life to the exclusion of all others, the relationship was genuine and continuing, and whether the parties lived together or did not live separately and apart on a permanent basis. Financial aspects of the relationship

Decision

Reasons for decision

It follows that I am not satisfied that [the applicant] was the spouse of [Ms A] as defined in s.5F of the Act. As a result, he does not meet cl.801.221(6) of Schedule 2 to the Regulations. As I have found he was not the spouse of [Ms A], it is not necessary for me to consider whether he suffered relevant family violence. There is no evidence before me 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 The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.Kate MillarMember

Ratio Decidendi

Legal Principle Established

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