1715039 (Migration)

[2018] AATA 5953

1715039 (Migration) [2018] AATA 5953 (18 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715039

MEMBER:Kira Raif

DATE:18 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 18 June 2018 at 3:56pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – family violence – relationship ended – claim of violence after sponsorship withdrawn – independent expert opinion – no response to Tribunal communication under s 359 – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), rr 1.23, 1.24, 1.25, Schedule 2, cls 801.221(6)(b), 801.221(6)(c)(i)

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 6 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 is a national of Thailand, born in [year]. He applied for the visa on 16 May 2013 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the applicant’s relationship with the sponsor ended and the delegate was not satisfied the applicant met any of the alternative criteria for visa grant. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 19 February and 17 April 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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).

5. Relevantly to this matter the primary criteria include cl.801.221 which requires 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.801.221(6)(b), (c)(i). The applicant claims this occurred in this case.

6. 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. 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).

7. In the present case the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence.

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

8. 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 is provided.

9. 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 and evidence of a type and number specified by the Minister for these purposes. 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).

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a temporary Partner visa in April 2014 on the basis of being in a de facto relationship with the sponsoring partner. However, in May 2017 the applicant informed the Department that the relationship ended. The applicant provided to the Tribunal a number of documents concerning his relationship and the reasons it ended.

11. In his submission to the Tribunal of 18 December the applicant claims the sponsor mistreated him and was aggressive but at that time the applicant did not provide the prescribed evidence relating to family violence.

12. The applicant’s evidence is that his relationship with the sponsor has ended. There is no evidence that at present, the applicant and the sponsor continue to live together or not apart on a permanent basis or that they maintain a joint household or share housework. There is no evidence that they share their finances, have joint liabilities or jointly contribute to expenses. There is no evidence that the applicant and the sponsor continue to represent themselves to others as being in a relationship or that they socialise together. There is no evidence that there continues to be a mutual commitment to the relationship or that the parties draw companionship and support from each other.

13. The Tribunal is not satisfied on the evidence before it that at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied that at the time of this decision, the applicant is the spouse or the de facto partner of the sponsor.

14. The applicant told the Tribunal in oral evidence that he had suffered family violence but presented little evidence to support this claim. The Tribunal granted the applicant time to obtain the prescribed evidence of family violence. The applicant ultimately provided to the Tribunal a declaration a psychologist, a declaration from a community worker (of the [organisation]) and a declaration from an accredited mental health social worker, as well as other statements and declarations. The Tribunal finds that a non-judicially determined claim of family violence has been made under r.1.23.

    Has the applicant suffered family violence?

15. The Tribunal has considered the applicant’s evidence but does not accept that the applicant has suffered family violence. The Tribunal is mindful that the claim of family violence has only been recently made and appears to have been made in response to the withdrawal of sponsorship. At no time prior to the sponsorship being withdrawn has the applicant made any reference to the family violence. The Tribunal also notes that the applicant’s engagement with the social workers and the psychologist appears to be very recent and, again, in response to the visa issues. Again, it appears that having had his visa application refused and determined that there were few other options of obtaining the visa, the applicant made the decision to claim family violence.

16. Having considered the applicant’s evidence, including his oral evidence, the Tribunal is not satisfied that the applicant has been truthful in his dealings with the Department and the Tribunal does not accept the applicant has suffered relevant family violence. In accordance with r. 1.23, the Tribunal sought the opinion of an independent expert. On 31 May 2018 the independent expert provided an opinion that the applicant had not suffered relevant family violence. The Tribunal wrote to the applicant inviting his comments on that information pursuant to s. 359A of the Act. The applicant did not respond to the Tribunal’s correspondence.

17. The Tribunal is satisfied that the independent expert’s opinion has been validly made. Having regard to that opinion, the Tribunal finds that the applicant has not suffered family violence.

18. The applicant’s evidence to the Tribunal is that his relationship with the sponsor has ended. The Tribunal finds that at the time of this decision, the applicant is no longer the spouse or de facto partner of the sponsor. The Tribunal is not satisfied the applicant has suffered family violence. There is no evidence that the sponsoring partner has died and there are no children in relation to whom the applicant has any court orders or responsibilities. The Tribunal is not satisfied the applicant meets cl. 801.221.

19. The applicant submitted to the Tribunal a number of character references and referred to his settlement in Australia. A number of witnesses provided statements concerning the relationship. The applicant told the Tribunal that they had a joint business but he did not get any funds when the relationship broke down. The Tribunal acknowledges that evidence but having found that the applicant does not meet key criteria for visa grant, the Tribunal has no option but to affirm the decision under review.

    Conclusion

20. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Kira Raif
    Senior Member