1714412 (Migration)

[2020] AATA 5277

1714412 (Migration) [2020] AATA 5277 (25 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714412

MEMBER:Justin Meyer

DATE:25 November 2020

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 (Partner) visa:

·  cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

.

Statement made on 25 November 2020 at 5.01pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine spousal relationship – validly married – social, household and financial aspects of relationship – nature of commitment – relationship ceased and parties divorced – non-judicially determined claim of family violence – statutory declarations by applicant and relevant professionals – physical, verbal and psychological violence – intervention order and recommencement of relationship – abortion – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25; Schedule 2, cl 801.221

CASE
He v MIBP [2017] FCAFC 206

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 4 July 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 September 2013 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). 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 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate was unconvinced that the parties were in a genuine spousal relationship. The delegate formed the view that the applicant entered into a contrived relationship for the sole reason of obtaining residence in Australia to procure a positive migration outcome. The delegate did not believe that the parties were in a committed long-term relationship.

4. The applicant appeared before the Tribunal on 16 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video using Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant did not raise any concerns as to conducting the review hearing by video, and confirmed their ability to do so. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The questions that arise in this case are: Whether the applicant and the sponsor were ever in a genuine and continuing relationship, and if so, whether the applicant is the victim of family violence committed by the sponsor during the relationship, within the meaning of the Regulations.

9. Before considering whether the applicant has suffered relevant family violence in accordance with the provisions of cl. 801.221(6)(c)(i) the applicant is still required to satisfy the decision maker that she would meet the requirements of cl.801.221(2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased. This, in turn, requires the applicant to show that she is the spouse of the sponsoring partner and they were in a genuine and continuing relationship.

   Whether the parties are in a spouse or de facto relationship

10. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

11. ‘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. 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 a married couple 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 about 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 visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal is satisfied that the parties married in Melbourne on 26 July 2013, as evidenced by oral evidence and a copy of a 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).

    Are the other requirements for a spouse relationship met?

    Nature of the commitment

13. The applicant first entered Australia in 2009 on a student visa, at the age of [age].

14. The applicant stated in evidence that she had graduated from a university in Victoria and then pursued a career in retail. She met the sponsor, who is some [number] years older than her, in 2012. The following year the applicant began living together with the sponsor. They lived together between the sponsor’s home (he lived with his parents) and the applicant’s home.  I accept that the parties divided their time between these properties for a period, before buying a home in central Melbourne in mid-2013 and residing there. There is written evidence of the purchase in the form of a contract submitted to the Tribunal, in joint names.

15. The parties are both of Chinese background.

16. I accept on the oral and written evidence that the parties’ relationship ceased on or around February 2018, its duration being some eight years.

17. The parties made mutual plans. The planned to have a child together, although ultimately the applicant’s pregnancy was terminated in early 2012 at the behest of the sponsor. The delegate referred to the applicant’s departmental interview, where she stated that she was pregnant in 2012 but as she was not married she decided to have an abortion. She could not recall where she had the abortion, however, the sponsor attended the procedure. The delegate was concerned that the sponsor stated that the applicant was pregnant when a student and that she had an abortion because she wanted to finish her studies and did not know if she could stay in Australia. The sponsor could not recall when she had the abortion.

18. Although there are discrepancies here, the Tribunal accepts that the applicant was the victim of family violence at the hands of the sponsor. An intervention order was obtained by the applicant against the sponsor in October 2011 (as submitted to the Tribunal) – although the applicant later recommenced the relationship. I accept the applicant’s submission that she suffered a lapse in memory in her answers to the department yet I note the essential consistency between the respective statutory declarations of the parties, submitted with the visa application. I also note that from the psychologist’s report attached to the relevant statutory declaration of 29 July 2019, the applicant had this abortion and several others in context of controlling and abusive behaviour perpetrated by the sponsor. I accept that the abortion, as described in the delegate’s decision was depicted in euphemistic terms in a context of fear from the applicant and deception by the sponsor. This clears up any concerns to the Tribunal’s mind as to the earlier inconsistencies. 

19. The sponsor also made claims in his personal statement dated 10 June 2016 that he had purchased property in [Suburb 1] in or around 2014 or 2015, with the intention to rebuild the house at that address for him and the applicant to live in the future

20. The applicant encouraged the sponsor to attend couples counselling sessions with her – an effort which was ultimately unsuccessful. The parries separated when the sponsor went overseas and the applicant moved out of home in 2018.

21. While the applicant travelled alone on occasion, I accept that some of this travel was for work and they were not trips that lent themselves to being accompanied by a spouse.

22. From her clear oral evidence, I accept that the applicant introduced her parents to her sponsor.  I also accept from the applicant’s spontaneous evidence that she was attracted to her sponsor and freely accepted his marriage proposal, which she described in natural terms. 

23. In all, the parties showed a commitment to a spousal relationship to the exclusion of all others.

    Social aspects

24. It is claimed that the parties’ married relationship existed for around five years.

25. There are declarations on file from individuals who recognised the relationship and I give them regard.

26. As detailed in the psychologist’s report, the sponsor exhibited jealous and controlling behaviour towards the applicant over the course of their relationship. This manifested in outbursts when the sponsor saw the applicant interacting with another male. The sponsor discouraged the applicant from socialising and would react in a volatile way when she did, especially when she talked to males. Going out and socialising with friends was a rare occurrence. I accept from the applicant’s evidence that the relationship was acknowledged by family members.

27. Bearing in mind the above matters, the Tribunal gives weight to parties having presented socially as a couple, within this context.

    Nature of the household

28. The Tribunal considers that the available evidence supports the applicant’s claim that the parties shared a household from 2013 until 2018.

29. I accept that the parties lived between the sponsor’s home (he lived with his parents) and the applicant’s home in the initial stages of their marriage, but then bought an apartment in central Melbourne in 2014 There is a contract to this effect in joint names and there is also associated documentation on the purchase.

30. The applicant stated that the parties shared household responsibilities. The applicant gave oral evidence that she cooked and the applicant would do washing and hang clothes. The applicant gave consistent and straightforward evidence here. She said that the sponsor would never let her drive which has some consistency with the family violence scenario described.

31. The delegate was not satisfied that the parties shared and maintained a household as a spousal couple. The sponsor provided differing addresses on incoming passenger cards, during an interview with the department on 8 February 2017, on his driver’s licence, and on his tax assessment. He apparently gave a previous residential address of the sponsor’s parents, a current residential address of the sponsor’s parents, the previous residential address of the applicant, the work address of the sponsor and the residential address of the sponsor’s business partner.

32. I accept that the sponsor only has a primary school education level and has difficulty speaking and writing in English, despite a long history in Australia. This can occur from time to time. It was plausible that he writes addresses that he knows how to write. The applicant believed that the sponsor, when travelling with others (such as the sponsor’s business partner), would have them fill out passenger cards on his behalf – leading to further inconsistencies.

33. The applicant always listed their common property as the relevant address and there is correspondence in joint names to this property, which I put store on.

34. Bearing in mind the above matters, the Tribunal gives weight to parties having resided in a household together throughout their marriage.

    Financial aspects

35. The applicant gave evidence about the parties’ financial arrangements.

36. The parties still own an apartment together as described above. A copy of a title search for a unit shows both the applicant and the sponsor as registered proprietors Their divorce was finalised only this month which means that there will need to be orders or arrangements made.     

37. The applicant has his own pork processing business. He was old-fashioned and would give cash to the applicant. The parties paid the apartment deposit together – AUD [$Amount 1] coming from the applicant and AUD [$Amount 2] from the sponsor. There is evidence of bills being sent to the parties together.

38. I accept the applicant’s evidence that she handled the parties’ finances. Most expenses were paid using cash (including groceries and bills), and mortgage payments were made from the joint [Bank 1] account held by the applicant and sponsor.

39. The delegate drew the conclusion that the parties opened their joint bank account purely to support the visa application and that there were multiples transfers to the applicant’s account which she then claimed as used for a joint purpose. I reject that this could not still be for a joint purpose. I accept that the applicant handled most of the parties’ finances. She is well-spoken, did not need an interpreter, and was organised in her thoughts and comments. It stands to reason that she would have the greater involvement over her less educated husband. The transactions noted as payments sent to her own account, occurring on or around the twelfth day of each month, were mortgage repayments. They are regular amounts that match a housing loan of this style.

40. The psychologist’s report notes that the sponsor’s behaviour during the relationship was often controlling – this is reflected in the sponsor giving the applicant some AUD [$Amount] per week and monitoring her bank accounts. This is indicative of an imbalance of power in the relationship, and was why the applicant had limited knowledge of his personal accounts. The delegate’s concerns on this point are therefore not a concern to me. The Tribunal here has evidence that was unavailable to the delegate.

41. In the circumstances there was considerable financial connection, and I give it weight.

    Overall evaluation

42. I consider that there was a spouse relationship between the parties (as defined in s.5F). Partner visa family violence criteria contain a requirement that the applicant would have continued to meet the requirement to be the spouse or de facto partner of the sponsor except that ‘the relationship between the applicant and the sponsoring partner has ceased’.[1] The relevant partner relationship (i.e. spouse or de facto, as defined in the legislation) existed before the determination that the relationship ‘has ceased’. I find that it has ceased and I note the divorce order (as described in the hearing) of November 2020 as evidence of this.

    [1] 801.221(6)

43. Thus, the Tribunal is satisfied that in this case there was a spousal relationship between the parties between 2013 and 2018.

44. On these aspects, the Tribunal considered all the evidence, individually and completely and   is satisfied that the parties were in a spousal relationship as defined by s.5F of the Act and that this relationship ceased. The issue that arises on the evidence in this case is whether the applicant suffered family violence committed by the sponsor, within the meaning of the Regulations.

    Has a claim of family violence been made under the Regulations?

45. 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 of the Regulations. 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), (14).

46. In the present case the applicant is seeking to establish family violence based on a non-judicially determined claim of family violence.

47. Under r.1.23, a visa application is taken to include a non-judicially determined claim of family violence where, either, a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with r.1.24 of the Regulations is provided.

48. The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 of the Regulations and evidence of a type and number specified by the Minister for these purposes in IMMI 12/116.

49. A statutory declaration under r.1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3). Such a statutory declaration has been made by the applicant meeting these requirements.

50. In support of her family violence claim the applicant provided information including the following: statutory declarations provided by a psychologist, a medical doctor and from the applicant, along with a submission by her representative. The supporting declarations identify the applicant as the victim of family violence perpetrated by the sponsor, during the spousal relationship. Both the psychologist ([Ms A]) and the doctor ([Dr B]) are registered or hold membership with the relevant bodies and authorities, as is specified. I am satisfied from the report that the psychologist has had an ongoing treating role, at the referral of a GP. The applicant gave consistent evidence of incidents of family violence that occurred during the marriage and these tally with the descriptions of the doctor and psychologist, and her own statutory declaration. Physical, verbal and psychological violence perpetrated by the sponsor featured and were described in detail. The Tribunal, after appropriate questioning, had no reasonable doubts about her evidence and claims here.

1. The Tribunal is satisfied that, the evidence presented meets the requirements of r.1.24. As such, a non-judicially determined claim of family violence has been made under r.1.23.

   Has the applicant suffered family violence?

2. Further, based on all other evidence, the Tribunal is satisfied that the sponsor, who is an Australian citizen, was the ‘sponsoring partner’ of the applicant.

3. The Tribunal is satisfied that the applicant would continue to meet the requirements of cl. 801.221(2) except that the relationship between the applicant and the sponsoring partner has ceased and the applicant has suffered family violence committed by the sponsoring partner. As a result, the applicant meets the requirements of cl.801.221(6) (b) and (c) of Schedule 2 to the Regulations.

4. For all the above reasons, the appropriate course is to remit the application for the visa to the Minister, to consider the remaining criteria for a Subclass 801 visa.

   DECISION

5. 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 (Partner) visa:

   · cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

   Justin Meyer
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.15A     Spouse

   (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

   (2)If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)The matters for subregulation (2) are:

   (a)the financial aspects of the relationship, including:

   (i)any joint ownership of real estate or other major assets; and

   (ii)any joint liabilities; and

   (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)the basis of any sharing of day to day household expenses; and

   (b)the nature of the household, including:

   (i)any joint responsibility for the care and support of children; and

   (ii)the living arrangements of the persons; and

   (iii)any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including:

   (i)whether the persons represent themselves to other people as being married to each other; and

   (ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)the duration of the relationship; and

   (ii)the length of time during which the persons have lived together; and

   (iii)the degree of companionship and emotional support that the persons draw from each other; and

   (iv)whether the persons see the relationship as a long term one.

   (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).