1800275 (Migration)

[2020] AATA 5524

1800275 (Migration) [2020] AATA 5524 (6 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1800275

MEMBER:Nicholas McGowan

DATE:May 6 2020

PLACE OF DECISION:  Melbourne

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

·     cl.820.211 and cl.820.221(3).

Statement made on 06 May 2020 at 1:34pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – relationship ceased – victim of judicially determined family violence – provisional and Final Intervention Order – sponsor convicted of assault occasioning actual bodily harm – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 368
Migration Regulations 1994 (Cth), rr 1.09A, 1.23; Schedule 2, cls 820.211, 820.221

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.

WRITTEN STATEMENT OF DECISION AND REASONS

1. This statement fulfils the Tribunal’s obligations under the Migration Act: s.368. While this statement sets out the Tribunals’ decision (above) -  the reasons for it - and findings on material matters (including the evidentiary basis), to fully appreciate this decision a third-party would need to appraise themselves with the documentary evidence in the Department of Immigration (‘department’) and Tribunal case files.

   Particulars

2. This is an application for review of a decision of a delegate of the Minister for Immigration.

3. [The applicant], is a British national born [date].

4. The applicant first arrived in Australia as the holder of a holiday visa in 2013. In 2015 the applicant was granted an eVisitor visa, and later that same year, the applicant was granted a Student visa.

5. The current application (the subject of this independent merits review) for her partner visa was lodged on 25 January 2016.

6. The applicant applied for her temporary partner visa on the basis of her de facto relationship with her sponsor [Mr A] who was born on [date].

7. During the applicant’s time in Australia, the applicant has been a lawful non-citizen.

8. On 20 December 2017 a delegate of the Minister for Immigration made a decision to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

9. The applicant appealed this Minister’s delegate’s refusal decision to this tribunal 4 January 2018.

   Relevant law

10. To be granted a Subclass 820 visa, the applicant must meet, at the time of decision, one of the alternate requirements contained in the subclauses listed in cl.820.221(1) of Schedule 2 to the Regulations. The issue in the present case is whether the applicant meets one of those requirements, namely cl.820.221(3). Clause 820.221(3) requires relevantly that the applicant would continue to meet the requirements of cl.820.211(2), (3), (4), (5) or (6) except that the relationship between the applicant and the sponsor has ceased, and at the relevant time, the applicant, or a dependent child of the sponsor or of the applicant or both of them has suffered family violence committed by the sponsor: cl.820.221(3)(a), 820.221(3)(b)(i).

11. A person is taken to have suffered family violence if under r.1.23 (4); (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) 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.

12. Further, under r.1.23(5), for sub regulation (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.

    Consideration of evidence and findings

13. The Tribunal had careful regard to assessing whether the applicant was at the time of application the spouse of her sponsor. This tribunal had regard to the circumstances of the parties relationship as set out in r.1.09A in determining whether the applicant satisfies this tribunal the parties were in a de facto relationship as defined in s.5CB(2) of the Act. This tribunal has been satisfied the applicant and her sponsor met the requirements of the Act after taking into account the necessary considerations.

14. This tribunal has come to the above finding because of the weight of the documentary evidence before it, including but not limited to statements from both the applicant and her former de facto; written statements of evidence provided to this tribunal by past (and present friends and acquaintances of the parties); and various other documents which speak clearly to the establishment of the parties claimed de facto relationship including their financial matters, socialising, and the nature of their household and commitment to one other. In addition, the parties (previously) submitted to this tribunal a copy of their relationship certificate, which was not provided to the Minister’s delegate previously. This is relevant because it speaks to the additional criteria the applicant and sponsor were required to meet for the grant of the partner visa. It also speaks to, and corroborates the claims of the applicant in regards to the inception and development of her relationship with the sponsor, notwithstanding its ultimate demise. Accordingly, cl.820.211(2) is met.

15. In regards to the time of decision criteria, the Tribunal has had regard to whether the applicant meets one of the alternate requirements contained in the subclauses listed in cl.820.221(1), namely cl.820.221(3). The applicant claims her relationship with her visa sponsor has ceased, and she has been the victim of judicially determined family violence: r.1.23 of the Migration Regulations 1994.

16. Accordingly, and given the above, this tribunal has considered all the evidence before it, and notably a provisional and Final Intervention Order and all the preliminary documents submitted in respect to the Final Order. This tribunal also notes the accompanying documentary evidence which includes a letter from [a Senior Constable], Domestic Violence Liaison Officer, [from specified] Local Area Command of the New South Wales Police Force which confirms [Mr A] (the applicant’s sponsor and former de facto partner) was convicted of assault occasioning actual bodily harm; and destroy or damage property; [in] April 2017 at [a] Court, and confirms in writing the victim in that matter was the applicant. This evidence is in addition to a copy of ‘Advice of Court Result’ from the Local Court of New South Wales made out in respect to the matters outlined by the Officer above (as found at folios 47-48 of this tribunal’s file).

17. It follows that given the above, this tribunal is satisfied that a court order was made against the applicant’s sponsor for the protection of the applicant in relation to violence that occurred whilst the parties were in the relationship, after the sponsor had an opportunity to be heard or otherwise make submissions to the court. Therefore, family violence is taken to have occurred under r.1.23(4) of the Regulations.

18. As the relationship (as at the date of decision) between the applicant and her sponsor has ceased and the applicant has suffered relevant family violence committed by her sponsor, the applicant meets the requirements of cl.820.221(3).

19. The appropriate course for this tribunal is to remit the application for the visa to the Minister to consider the remaining criteria for the grant of the visa.

20. As required under the section 368(3)(b), this Tribunal will provide to the Secretary a copy of the new documentary evidence on which material findings of facts were based.