1714359 (Migration) [2020] AATA 670 (10 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1714359
MEMBER:John Longo
DATE:10 February 2020
PLACE OF DECISION: Melbourne
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.820.221(3) of Schedule 2 to the Regulations; and
·cl.820.211(1) of Schedule 2 to the Regulations.
Statement made on 10 February 2020 at 2:52pm
CATCHWORDS MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – genuine de facto relationship at time of application – financial aspects – comingling of financial affairs – sharing of financial resources freely and without limits – nature of household – social aspects – nature of commitment – family violence claim – court tested evidence – Court Order – Interim Intervention Order made by a Magistrates’ Court – decision under review remitted
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 on 16 June 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 17 November 2015 on the basis of her relationship with her sponsor, [Mr A]. At the time the visa application was lodged, 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).
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 this case.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.211(2) because the delegate was not satisfied that there was a mutual commitment to a shared life between the applicant and the sponsor.
The applicant appeared before the Tribunal on 18 October 2019 to give evidence and present arguments.
The applicant was…
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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AGLC
1714359 (Migration) [2020] AATA 670
Case
[2020] AATA 670
Decision Date
CaseChat Overview and Summary
This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant who claimed her relationship with the sponsor had ceased and that she had been a victim of family violence. The Tribunal was required to consider whether the applicant met the criteria for the visa, particularly in light of the cessation of the relationship and the family violence claim.
The primary legal issues before the Tribunal were whether the applicant was the de facto partner of the sponsor at the time of the visa application, and whether the applicant had suffered family violence. The definition of a de facto relationship under section 5CB of the Migration Act 1958 (Cth) required a mutual commitment to a shared life, a genuine and continuing relationship, cohabitation, and that the couple were not related by family. The assessment of a de facto relationship involved considering all circumstances, including financial and social aspects, the nature of the household, and the commitment to each other, as outlined in regulation 1.09A(3).
The Tribunal found that the applicant met the criteria under cl.820.211(1)(a) as she was not the holder of a Subclass 771 (Transit) visa at the time of application. Crucially, the Tribunal determined that the applicant met the requirements of cl.820.221(3) due to the cessation of her relationship with the sponsor and her experience of family violence. The Tribunal noted that family violence did not need to cause or contribute to the cessation of the relationship, nor did it need to have occurred before the cessation, but it must have existed.
Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa for reconsideration by the Minister, with the direction that the applicant met the criteria under cl.820.221(3) and cl.820.211(1) of Schedule 2 to the Regulations.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE In the present case, the applicant claims the relationship with [Mr A], the visa sponsor has ceased, and she has been the victim of family violence. The Tribunal notes that the family violence need not have caused or contributed to the cessation of the spousal relationship, nor need it have occurred before the relationship ceased, but it must have existed: Muliyana v MIAC (2010) 183 FCR 170. The primary criteria to be satisfied at the time of application are that the applicant is not the holder of a Subclass 771 (Transit) visa and that she meets one of the alternate requirements set out in cl.820.211(2), (5), (6), (7), (8) or (9): cl.820.211(1). The Tribunal has reviewed the applicant’s movement records which also detail her visa status at various times. The Tribunal is satisfied that the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application. Therefore, the Tribunal finds that cl.820.211(1)(a) is met. The subclause relevant to the applicant’s circumstances is cl.820.211(2). The key issue for determination is whether, at the time of application on 17 November 2015, the applicant was the de facto partner of the sponsor. Whether the parties are in a spouse or de facto relationship 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. The applicant claims to be the de facto partner of the sponsor who is an Australian citizen. The Tribunal notes that a certified copy of the sponsor’s Australian passport is on the Department’s file. The Tribunal is satisfied that the sponsor is an Australian citizen.Are the parties in a de facto relationship? ‘De facto partner’ is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2). In forming an opinion whether they are in a de facto relationship, consideration must be given 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.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.Consideration of the r.1.09A(3) factors 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.The financial aspects of the relationship
Decision
Reasons for decision
As the relationship between the applicant and sponsor has ceased, and the applicant has suffered family violence committed by the sponsor, the applicant meets the requirements of cl.820.221(3). Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.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.820.221(3) of Schedule 2 to the Regulations; and· cl.820.211(1) of Schedule 2 to the Regulations. John LongoMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994Interpretation In this Division: "independent expert " means a person who: (a) is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and (b) is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence. "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. "statutory declaration " means a statutory declaration under the Statutory Declarations Act 1959 . "violence " includes a threat of violence. …1.23 When is a person taken to have suffered or committed family violence?When is a person taken to have suffered or committed family violence? (1) For these Regulations, this regulation explains when: a person (the alleged victim ) is taken to have suffered family violence; and 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 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 the 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: convicted the alleged perpetrator of an offence of violence against the alleged victim; or 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: the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and 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: the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and the alleged victim is: (i) a spouse or de facto partner of the alleged perpetrator; or (ii) a dependent child of: the alleged perpetrator; or the spouse or de facto partner of the alleged perpetrator; or 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: the Minister must consider whether the alleged victim has suffered relevant family violence; and 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 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: an application for a visa includes a non-judicially determined claim of family violence; and 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: an application for a visa includes a non-judicially determined claim of family violence; and 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.
Ratio Decidendi
Legal Principle Established
In forming an opinion whether they are in a de facto relationship, consideration must be given 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.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.Consideration of the r.1.09A(3) factors 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.The financial aspects of the relationship Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship. There is no evidence before the Tribunal that the parties jointly own real estate or other major assets. There is some evidence of assets that are shared jointly, including a joint [Bank 1] business account, which was opened on 3 March 2016. Initially, the applicant stated that the sponsor was responsible for all their expenses, as he was the sole income earner and a [Occupation 1, in partnership] with [Mr B]. They also resided in the sponsor’s home, which was in his sole name. The applicant stated that the sponsor and his friends encouraged her to start a [specified business], as she had worked as a [Occupation 2] previously. Her and the sponsor bought a business that had closed down which was about five minutes from their home in [Suburb 1]. The business was for sale for $[Amount 1] but because it had been closed for about three months they eventually bought it for [a third of the original price] without the [specified] stock. Four friends of the sponsor invested $[Amount 2] in the business. This included [Mr B], who gave them $[Amount 2] as a wedding gift. The applicant stated that the sponsor also put money towards the business. The applicant stated that they spent some time setting up and renovating the [business premises], including buying furniture and setting up [equipment]. The sponsor’s friends who invested in the business also helped with painting and renovating. She stated that they organised [specified business plans] together. They opened the [business in] March 2016. The Tribunal notes that a corporate entity [Company 1] [ACN] was registered [in] February 2016. While the applicant is listed as the sole shareholder and director of [Company 1], the registered address of the entity, and the applicant, is her residential address. The Tribunal notes that the above [Bank 1] business account opened in the name of [Company 1], lists both the applicant and sponsor as signatories to the account.