1803538 (Migration)

[2022] AATA 5188

1803538 (Migration) [2022] AATA 5188 (30 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803538

MEMBER:Justine Clarke

DATE:30 May 2022

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 820.211(1) of Schedule 2 to the Regulations

·cl 820.221(3) of Schedule 2 to the Regulations

Statement made on 30 May 2022 at 2:11pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased – genuine and continuing relationship before family violence – parties divorced – shared financial resources – joint travel – plans to start a family – evidence of joint social gatherings – limited mutual commitment to a shared life – evidence of family violence – decision under review remitted 

LEGISLATION
Family Law Act 1975
Migration Act 1958, ss 57, 65, 359, 360
Migration Regulations 1994, rr 1.15, 1.21, 1.23; Schedule 2, cls 820.211, 820.221, 820.411

CASES
El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

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 on 7 February 2018 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Iran. At the time of application, she was aged [age] years and at the time of this decision, she is aged [age] years.

3. On 8 February 2016, the applicant applied for the visa based on her relationship with her sponsor, [Mr A]. At the time of application, he was aged [age] years.

4. At the time of application, 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. Relevantly to this matter, the primary criteria include cl 820.211 and 820.221 which respectively require that, at the time of application and decision, the applicant is 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 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.

5. The applicant provided the Tribunal with a copy of the delegate’s refusal decision. The delegate refused to grant the applicant the visa on the basis that she did not satisfy cl 820.211(2)(a) of Schedule 2 to the Regulations because the delegate found that the information and evidence, submitted in support of the application, was not sufficient to demonstrate that, at the time of application on 8 February 2016, the applicant satisfied the definition of spouse under s 5F of the Act. The Tribunal is aware from review of the Department’s file that, on 8 March 2017, the Department received an anonymous dob in. However, it appears that the delegate did not put this information to the applicant for comment or response. If the process in s 57 was followed, the information about this is not included in the copy of the file provided to the Tribunal.

6. On 10 February 2018, the applicant applied to the Tribunal for review of the refusal decision. The applicant was represented in relation to the review.

7. On 25 January 2019, the representative informed the Tribunal that the relationship had broken down due to domestic violence. Subsequently, evidence was submitted that, in November 2019, [Mr A] had applied for divorce.

8. On 22 October 2021, the Tribunal wrote to the applicant, by way of her representative, about three matters: (i) to seek further information pursuant to s 359(2) of the Act; (ii) to inform her about two non-disclosure certificates that are on the Department’s file; and (iii) to inform her about adverse information on the Department’s file and to invite her to comment on or respond to that information pursuant to s 359A. The letter requested that the information and the comments or response should be received by 5 November 2021 and outlined the consequences of failing to respond or request an extension of time by this date.

9. On 25 October 2021, the representative wrote to the Tribunal to inform that the applicant had instructed that, initially, she had not been provided with a copy of her police statement/report in relation to the family violence incident and that, on several occasions, she had requested a copy of the report but had not been provided with a copy. The representative queried whether the Tribunal could issue a summons to Victoria Police to produce the relevant documents. In the end, such action has not been needed as the applicant was granted copies of two reports pursuant to a Freedom of Information request. 

10. On 4 November 2021, within the requested time frame, the applicant submitted further information in support of the claim that, prior to the cessation of the relationship, she and her sponsor were spouses as well as further evidence in support of the claimed family violence.

11. Upon reviewing the evidence, the Tribunal has concluded that a hearing is not required. Pursuant to s 360(2)(a) of the Act, the Tribunal considers that it should decide the review in the applicant’s favour based on the material before it.

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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).

14. The Tribunal has reviewed the applicant’s movement records which also detail her visa status at various times. The Tribunal is satisfied that, at the time of application on 8 February 2016, the applicant was not the holder of a Subclass 771 (Transit) visa. Therefore, the Tribunal finds that cl 820.211(1)(a) is met.

15. 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, the applicant was the spouse of the sponsor. As has been explained, the delegate was not so satisfied.

16. As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

    Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application.

17. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

18. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 as well.

    TIME OF APPLICATION REQUIREMENTS

    Whether the parties were in a spouse or de facto relationship

19. 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.

20. The applicant claims that, from 8 February 2016, which is when she applied for the visa and up until the cessation of the relationship in late 2018, she was the spouse of the sponsor who is an Australian citizen. A copy of the sponsor’s registered birth certificate is on the Department’s file. From the evidence before it, the Tribunal is satisfied that the sponsor is an Australian citizen by birth.

21. ‘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).

22. In forming an opinion about these matters, regard must be had to all 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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Were the parties validly married?

23. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. [In] November 2015, the applicant and the sponsor married each other in [Suburb 1], Victoria. A copy of the official certificate of marriage is on the Department’s file and a copy of the registered marriage certificate is on the Tribunal’s file. 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) matters

24. Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the person’s commitment to each other.

25. In considering these issues, the Tribunal has had regard to all the documents on the Department’s file and the Tribunal’s file. The Tribunal notes that in this review application the Tribunal has had the benefit of considering further evidence than what was before the delegate.

    The non-disclosure certificates

26. The Department’s file contains two non-disclosure certificates, each said to be made pursuant to s 376 of the Act.

27. The certificate made on 13 February 2018 stated that the relevant folio contains an anonymous allegation; that the information was provided in confidence to the Minister, or to an officer of the Department; that there may be risk to the person making the allegation if the applicant or sponsor is able to identify them; and that s 375A does not apply. 

28. The certificate made on 24 April 2019 stated that disclosure of the material would be contrary to the public interest because it may disclose or enable a person to ascertain the existence or identity of a confidential source of information.

29. Both certificates were signed and dated, as required by El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840. Having reviewed the certificates and the material sought to be protected from disclosure, the Tribunal finds that the certificates were validly made.

30. The Tribunal’s letter of 22 October 2021 stated the following with respect to the two non-disclosure certificates.

    The Department of Home Affairs’ file for the processing of your application for the visa contains two non-disclosure certificates, both said to have been made pursuant to s 376 of the Act.

    With respect to each certificate, the Tribunal must: (i) assess validity; (ii) accord procedural fairness, including disclosing the existence of the certificate to you and providing you with a copy; and (iii) comply with the procedural code, including inviting you to seek a favourable exercise of the discretion in s 376(3)(b) and complying with s 359A or s 359AA, that is, giving you clear particulars of information that is adverse to you case and inviting you to comment on or respond to the information.

    The Tribunal is attaching a copy of each certificate to this letter for your reference.

    The Tribunal has considered the certificates and the material sought to be protected from disclosure by the issuing of the certificates.

    The s 376 certificate made on 13 February 2018 seeks to protect folio 21 of the Department’s file which details a dob in made in writing to the Department by an anonymous source on 8 March 2017.

    The s 376 certificate made on 24 April 2019 seeks to protect folio 64 of the Department’s file which details a dob in made in writing to the Department by an anonymous source on 16 March 2019.

    With respect to validity, the Tribunal considers that each certificate is validly made. However, you are entitled to and invited to make submissions in relation to the validity of the certificates.

    The Tribunal has the discretion to disclose the information sought to be protected by the certificates to you, or it may withhold the information, having regard to any comments raised by the delegate in the certificates.

    The Tribunal is not proposing to provide you with copies of the protected material. However, relevant material (whether protected or not) which engages the Tribunal’s obligations under s 359A of the Act, is particularised in the next section and you are invited to comment on or respond to the information.

    If you wish to make any submissions in relation to the validity of the certificate and/or you seek the release of the protected material beyond the gist that is outlined in Part 3 below (that is, you seek a favourable exercise of the discretion in s 376(3)(b)), please forward written submissions to the Tribunal by 5 November 2021.

31. In the next part of the letter, the Tribunal invited the applicant to comment on or respond to information pursuant to s 359A.

    The Tribunal is now writing to you pursuant to s 359A. In conducting the review, the Tribunal is required by the Act to invite you to comment on or respond to certain information which it considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    The Tribunal notes that you claim to meet cl 820.211(2)(a) of Schedule 2 to the Regulations and that your representative’s letter of 25 January 2019 appears to suggest that you claim to meet cl 820.221(3)(b).

    You claim that, up until the cessation of the relationship, you had been the spouse (as defined in s 5F of the Act) of the sponsoring partner, [Mr A]. However, the Department’s file contains some information that is adverse to your case.

    Allegations

    The Department’s file contains allegations made against you on three occasions. On two occasions the allegations were made by an anonymous source and on the other occasion the source gave their name.

    As mentioned above, on 8 March 2017 and on 16 March 2019 anonymous source/s made written allegations about you to the Department. The Tribunal is of the view that one source made both of these dob ins because on the second occasion, when asked whether they had provided information about the offence before, they replied ‘yes’.

    On 30 January 2019, the named source made written allegations about you to the Department. The Tribunal is of the view that this source is different to the anonymous source.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are that:

    ·     You married [Mr A] for non-genuine purposes. (Alleged by all sources)

    ·     You contrived your relationship with your husband for the purpose of obtaining permanent residency and money. (Alleged by the anonymous source)

    ·     You ‘faked’ your police report because you had heard that, if you obtained evidence in support of a claim of family violence, you could obtain permanent residency without needing to remain in the relationship. (Alleged by the anonymous source)

    Clause 820.211(2)(a) requires that, at the time that you made the application for the visa on 8 February 2016, you were the spouse or de facto partner of a person who: (i) is an Australian citizen [other parts of this paragraph are not relevant in your case]; and (ii) is not prohibited by subclause (2B) from being a sponsoring partner.

    Clause 820.221(3)(b) requires that, at the time the Tribunal makes its decision, you, as the applicant, would continue to meet the requirements of cl 820.211(2) except that the relationship between you and your sponsoring partner has ceased. Essentially, the prior existence of a relationship is a precondition to an assessment of family violence (cl 820.221(3)(a)).

    The information outlined above is relevant to the review because to meet the definition of ‘spouse’ under s 5F of the Act, prior to the cessation of your relationship, you and your sponsor must have been in a ‘married relationship’.

    Two of the four requirements for a ‘married relationship’, for the purposes of the Act, are that:

    ·     the parties have a mutual commitment to a shared life together as husband and wife to the exclusion of all others (s 5F(2)(b)); and

    ·     the relationship is genuine and continuing (s 5F(2)(c)).

    If the Tribunal relies on the information in the allegations in making its decision, it may conclude that, prior to the cessation of the relationship, you did not meet some of the mandatory criteria for a spousal relationship within the meaning of s 5F of the Act.

    Further, the Tribunal may impugn your general credibility.

    The consequence of this information being relied upon is that the Tribunal may find that, prior to the cessation of the relationship, you were not the ‘spouse’ of your sponsor within the meaning of s 5F of the Act, which in turn may lead the Tribunal to find you do not meet cl 820.211(2)(a) and/or cl 820.221(3)(a) of Schedule 2 to the Regulations. This would lead the Tribunal to affirm the decision not to grant you a Partner (Temporary) (Class UK) visa.

    You are invited to give comments on or respond to the above information in writing.  

32. In her written response, the applicant did not seek to make submissions about the validity of the certificates or seek the favourable exercise of the discretion in s 376(3)(b). Rather, the applicant’s focus was to respond to and deny the veracity of the adverse information.

33. With respect to the s 359A information, in her statutory declaration of 3 November 2021, the applicant denied all the allegations that were made against her. She declared that they were unsubstantiated, and that the spousal relationship had been in place from the time of the marriage in 2015 until the end of 2018.

34. She queried, ‘[i]f I married him with bad faith and for the non-genuine purposes why our relationship would [have] lasted until the end of 2018 where I had to break up with him because of his violent behaviours, and he did not end our relationship earlier’?

35. She declared that there was evidence that countered the allegations, such as:

    ·     evidence of the shared financial aspects of the relationship;

    ·     evidence of the social aspects of the relationship such as her being listed as a beneficiary in the sponsor’s mother’s will in 2018; a signed statement made by the sponsor’s friend [Friend A] on 31 August 2018 in support of the relationship; air tickets for travel together in June 2018 and October 2018; and photographs of the parties together with friends at social gatherings; and

    ·     evidence of the nature of the persons’ commitment to each other such as her medical records which show a consultation with her doctor on 1 October 2018 suggesting that she was planning to become pregnant.  

36. In addition, she declared that ‘[i]t is evident that the dates of dob-ins are consistent with some significant events’. She continued:

    In 2017, [Mr A’s] behaviour made me refer to the police because I was afraid of my own safety. I was taken to a safe house for about two days. Police filed an intervention order against [Mr A] for my protection. [Mr A] apologized to me and promised to change his behaviour and then I decided to return to him again. In another incident, on [a day in] December 2018, [Mr A] became violent to me and kicked me out of the house. I was shivering at the [bus] stop due to severe fear and anxiety and was taken to the hospital. Police filed an interim intervention order against him, and I decided not to return to him again. How could I fake the hospital report and the police report to take advantage of it? I already described those incidents in a statutory declaration dated 23 January 2019 to provide to my psychologist. On [a day in] March 2019, the court made a final intervention order against [Mr A]. He was present at the court and accepted the order.

    Considering above, there is a close timing between the dob-ins and the above events. This indicates that [Mr A] himself directly or indirectly made the dob-ins after each time he was angry because of getting interrupted or upset by the police.

1. The Tribunal has considered the applicant’s strong refutation of the allegations. The Tribunal notes the evidence in support of the applicant’s contentions. For example, the police reports (which the applicant received pursuant to Freedom of Information) and the psychologist’s report of [April] 2019 which states, ‘[t]here was an Intervention taken out in 2017 by [the applicant] and she renewed this Intervention Order on the [date in December 2018] which still remains in force’.

2. In view of all the evidence before the Tribunal, the Tribunal gives no weight to the anonymous allegations and the allegation from the named source. The Tribunal has formed the view that one or both sources may have made the allegations out of malice.

3. Accordingly, the Tribunal considers that none of the information in the earlier-mentioned folios (that is, allegations made by the anonymous source) or the adverse information in the correspondence sent by the named source is relevant to the issues in this review. The information in these folios is not the reason, or part of the reason, for affirming the decision under review. The Tribunal considers that it has complied with its obligations with respect to the s 376 certificate and s 359A of the Act.

   The financial aspects of the relationship

4. 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.

5. There is no evidence before the Tribunal that, at the time of application or at any time thereafter, the applicant and the sponsor jointly owned real estate; that they had any joint liabilities; or that one person in the relationship owed any legal obligation in respect of the other. The evidence is that the parties’ main joint asset was a joint bank account (‘Smart Access’) with the Commonwealth Bank, opened in September 2018. The Tribunal notes the documentary evidence submitted with respect to this account, including a transaction listing printed on 5 November 2018. The listing shows regular use of the account, including for the payment of rent, bills and purchases including at supermarkets. There was a balance of less than $100 at the date of the listing.

6. With respect to any pooling of financial resources and any sharing of day-to-day household expenses, it was claimed, in the Record of Responses filed in the application for the visa, that the sponsor has his own business and financially supported the applicant, including taking care of the utilities.

7. In this review, the applicant submitted copies of three invoices from mid-2018 for her attendance and treatments at a dentist. These invoices suggest that while the treatment was for the applicant, the payment was made by the sponsor as the invoices are made out in his name.

8. The Tribunal considers that the limited documentary evidence of financial commitment does not necessarily point away from a finding that, prior to the cessation of the relationship, the applicant and the sponsor were in a spousal relationship. Rather, the Tribunal is mindful that evidence of the sharing of finances and expenses may be difficult for the applicant to access given that she claims that the sponsor was primarily responsible for finances and the relationship has broken down.

9. The Tribunal gives some—albeit a little—weight to the evidence of the financial aspects of the relationship.

   The nature of the household

10. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

11. There is no evidence before the Tribunal that the review applicant and the visa applicant have any children together or that either of them has any children from any previous relationship. The Tribunal finds that, at no point, has there been any joint responsibility for the care and support of children.

12. With respect to the living arrangements of the persons, it was claimed, in the Record of Responses filed in the application for the visa, that the applicant and the sponsor were sharing a bedroom together at a specific address in [Suburb 1], Victoria, where they also lived with a small dog. The Tribunal notes that this is the address where the sponsor was recorded as living in the registered marriage certificate.

13. As was noted in the delegate’s refusal decision, the applicant submitted two lease agreements: the first for a property in [Suburb 2] and the second for a property in [Suburb 1] (a different address from the claimed residential address at the time of application). However, the delegate was critical of this evidence, noting that the parties married in November 2015 and the applicant applied for the visa on 8 February 2016, yet the leases relate to April 2016 onwards and that the applicant had not provided evidence that she and the sponsor live together as spouses and share responsibilities of a household.

14. In this review, the Tribunal takes a different view of the evidence before it.

15. The Tribunal considers that the applicant has endeavoured to provide further evidence of the claimed living arrangements over the years. In addition to the two leases submitted to the Department, she also submitted evidence in respect of a property leased to her and the sponsor in [Suburb 3]. For example, she provided a letter from the real estate agent dated 4 May 2018 and tax invoices from a telecommunications provider in May and June 2018, addressed to both her and the sponsor at the property in [Suburb 3]. She also submitted a signed and stamped application form requesting Australia Post to redirect mail from the second [Suburb 1] address (that is, the property for which there was a lease from 17 March 2017—not the property where the parties claimed to live at the time of application on 8 February 2016) to the property in [Suburb 3].

16. The Tribunal notes that while the three dental invoices (mentioned earlier) are from similar periods in mid-2018, they list a different address—the property in [Suburb 2] (for which there was a lease from 6 April 2016 to 5 April 2017). The Tribunal is not troubled by this difference. The Tribunal is mindful, including from observations in other cases that have been before the presiding Member, that sometimes people do not update their change in residential address at dental and doctor’s practices.

17. With respect to any sharing of the responsibility for housework, it was claimed, in the Record of Responses filed in the application for the visa, that the applicant and the sponsor shared the responsibility for housework and cleaning. As is the case in many partner cases that come before the Tribunal, no corroborating evidence was submitted in this respect. It is difficult for the Tribunal to make specific findings about the responsibility for housework. However, the Tribunal is of the clear view that a lack of corroborating evidence is not the reason, or a part of the reason, for the Tribunal to affirm the decision under review.

18. The Tribunal considers that the evidence of the nature of the household is suggestive of a spousal relationship and accordingly the Tribunal gives some weight to it.

    The social aspects of the relationship

19. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

20. With respect to whether the persons represented themselves to other people as being married to each other and whether they undertook joint social activities, the delegate noted that the applicant had submitted photographs of her with the sponsor and of them together with friends and family. Whilst acknowledging that this was evidence that the parties had met each other’s families and friends and had undertaken some joint social activities, the delegate found that this evidence did not constitute ‘convincing’ evidence of a committed spouse relationship.

21. In this review, the Tribunal takes a different view of the evidence before it. The Tribunal considers that the applicant has submitted strong evidence in support of her contention that, prior to the cessation of the relationship, she and the sponsor had represented themselves to other people as being married to each other. She has submitted many photographs of the parties together at social gatherings that were not before the delegate. (Some of the photographs are screenshots so include dates). Further, she has submitted a copy of the executed will of the sponsor’s mother, made on a specific date in early 2018, which clearly indicates that the sponsor’s mother acknowledged the applicant as her daughter-in-law and provided for her in that capacity.

22. Similarly, the Tribunal considers that the applicant has submitted further evidence in support of her contention that, prior to the cessation of the relationship, she and the sponsor had undertaken some joint social activities. This was photographic evidence of various events as well as boarding passes for the couple’s return flights together to Cairns.

23. With respect to the opinion of the persons’ friends and acquaintances about the nature of the relationship, the Tribunal notes and gives weight to the following declarations and statements:

    ·Form 888 statutory declaration made by the sponsor’s friend [Friend A] on 31 August 2018; and

    ·Form 888 statutory declaration made by the applicant’s friend [Friend B] on 4 November 2018.

24. The Tribunal notes that, at the time of making their declarations, both declarants had known the parties for a number of years, were aware of the marital relationship and that their reasons for considering the parties’ relationship to be genuine and continuing at that time were well considered, including in the case of [Friend A] because he and his wife had been ‘part of many special occasions with them’ including the wedding of the applicant and the sponsor, and in the case of [Friend B] because she had been part of the wedding party, had been on road trips with them and socialised with them twice a month.

25. The Tribunal considers that the evidence of the social aspects of the relationship suggests that, prior to the cessation of the relationship, the applicant and the sponsor had been in a spousal relationship. Accordingly, the Tribunal gives weight to this evidence.

    The nature of the persons’ commitment to each other

26. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

27. It was claimed, in the Record of Responses filed in the application for the visa, that the applicant and the sponsor had first met online on 5 April 2015 and that they texted for two days before meeting in person on 7 April 2015. In this document, the applicant detailed the development of the relationship, including claiming that, when she was offshore, she and the sponsor had maintained daily contact via Skype and WhatsApp and that the sponsor had flown to [Country 1] to meet up with her and to meet her father. She claimed that they were in ‘a very loving and passionate relationship’.

28. While there is very little (if any) evidence to corroborate the applicant’s claims about the inception and early development of the relationship, the Tribunal accepts the applicant’s evidence. The Tribunal considers that the evidence of the financial aspects of the relationship, the nature of the household and the strong evidence of the public recognition and acceptance of the relationship suggest that the applicant and the sponsor had been in a genuine and continuing, exclusive relationship from April 2015 until late 2018, when the relationship broke down. Accordingly, the Tribunal gives weight to the evidence of the duration of the relationship (over three and a half years) and to the length of time that the parties lived together (over three years).

29. With respect to the degree of companionship and emotional support that the persons draw from each other and whether the persons saw their relationship as long-term, the Tribunal acknowledges that it is difficult to make specific findings based on the limited evidence submitted. However, the Tribunal acknowledges and gives weight to the medical evidence that, in early October 2018, the applicant had consulted her general practitioner about pregnancy, stating that she planned to have a baby at the end of the year. This suggests that, while the relationship was in place, the applicant and the sponsor were committed to each other and saw their relationship as being for the long term.

30. Accordingly, having considered all the evidence cumulatively, the Tribunal finds that, from the beginning of their committed relationship until its demise, the applicant and the sponsor demonstrated a level of commitment to one another and to their relationship as contemplated in the Regulations.

31. The Tribunal places weight on the nature of each person’s commitment to the other.

    Conclusion on time of application requirements

32. As stated above, the Tribunal is satisfied that, at the time of application, the parties were validly married, as required by s 5F(2)(a) of the Act.

33. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, at the time of application on 8 February 2016, the applicant and the sponsor:

    • had a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act;
    • had a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and

    ·lived together as required by s 5F(2)(d)(i) of the Act or did not live separately and apart on a permanent basis, as required by s 5F(2)(d)(ii) of the Act.

34. Given these findings, the Tribunal is satisfied that, at the time the visa application was made, the parties were in a spousal relationship.

35. However, the spouse requirement in cl 820.211(2)(a)(i) is not the only requirement in cl 820.211(2) which must be satisfied at the time of application. The sponsorship requirements in cl 820.211(2)(a)(ii) and cl 820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl 820.211(2)(d) must also be satisfied.

36. The Tribunal has reviewed documents on the Department’s file but notes that the sponsorship for a partner to migrate to Australia form (Form 40SP) is not included. Nevertheless, the Tribunal notes that the delegate referred to [Mr A] as ‘the sponsor’ in the refusal decision and stated that he ‘lodged a sponsorship in support of the application’. There is no information before the Tribunal to suggest that, at the time of application, the applicant was not sponsored by [Mr A] or that the circumstances outlined in cl 820.211(2B) apply. Accordingly, the Tribunal is satisfied that the applicant was sponsored by [Mr A] and that cl 820.211(2)(c)(i) is met and that [Mr A] was not prohibited by cl 820.211(2B) from being a sponsoring partner. Accordingly, the Tribunal also finds that cl 820.211(2)(a)(ii) is met.

37. The applicant’s movement records (which are on the Tribunal’s file) evidence her as having been granted a Subclass 600 Student (Class FA) visa on 2 December 2015. She held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 8 February 2016. As she held a substantive visa at the time of application, the further requirements in cl 820.211(2)(d) need not be met.

38. The Tribunal finds that the applicant meets the time of application requirements in cl 820.211(2). As the applicant meets the requirements of cl 820.211(2), she also meets cl 820.211(1)(b). As both cl 820.211(1)(a) and (b) are met, cl 820.211(1) is met.

    TIME OF DECISION REQUIREMENTS

39. Based on the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased.

40. In this review, the applicant filed documentary evidence supporting her claim that she suffered family violence committed by the sponsor.

41. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

42. Under reg 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 reg 1.21. 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: reg 1.23(3), (5), (7), (12), (14).

43. In this review, the applicant filed:

    ·the police report concerning ‘family violence at [Suburb 1]’, dated [in] March 2017, giving the applicant’s details; details of the complaint and that it resulted in an application being made for an Intervention Order. As the report was obtained pursuant to a Freedom of Information request, the name and details of the accused were not disclosed;

    ·handwritten, signed letters from the applicant’s friends, siblings [Sibling A] and [Sibling B], detailing their knowledge of events leading to the applicant being taken to hospital in an ambulance on [a day in] December 2018 (both also provided their mobile phone numbers and said that they would be happy to be contacted to provide further information);

    ·medical records from the hospital the applicant was admitted to on [the day in] December 2018 stating, amongst other things, that the applicant had experienced a stress reaction from an event that day with ‘violent husband’;

    ·a handwritten, signed letter from the applicant’s friend [Friend C] detailing her knowledge of events while the applicant was in hospital, following her admission [in] December 2018, and how, following the applicant’s discharge from hospital, she had taken her to the police station to make a statement. She also stated her knowledge of the applicant’s living arrangements in the weeks that followed. (She also provided her contact details and said that she would be happy to be contacted to provide further information);

    ·the police report concerning ‘family violence at [Suburb 3]’, dated [the day in] December 2018, giving the applicant’s details; details of the complaint and that it resulted in an application being made for an Intervention Order. As the report was obtained pursuant to a Freedom of Information request, the name and details of the accused were not disclosed;

    ·an interim Intervention Order, on the application of a Member of Victoria Police and for the protection of the applicant in the present case, issued by [Court 1] on 27 December 2018. The order names the respondent as [Mr A] and states that he was not in Court.

    ·medical records evidencing that the applicant raised an incident of claimed domestic violence with her general practitioner in January 2019, resulting in a Mental Health Care Plan;

    ·medical records titled ‘GP Mental Health Treatment Plan’;

    ·tax invoices for consultations the applicant had with a named clinical psychologist on various dates in January, February, March and April 2019;

    ·psychological report prepared by a named clinical psychologist [in] April 2019, listing 11 consultations with the applicant, detailing the claimed family violence and stating, amongst other things, ‘[the applicant] tried to answer all questions asked of her and she came across as an honest and reliable respondent. I did not get the impression that she was trying to overembellish her current situation and or symptoms’ and ‘[i]t would seem that [the applicant] has been severely affected by the effects of the behaviour of her estranged husband as indicated in my assessment which constitutes family violence as reported by her in the statement to her Migration Agent, which I have read’; and

    ·an Intervention Order, on the application of a Member of Victoria Police and for the protection of the applicant in the present case, issued by [Court 1] [in] March 2019. The order names the respondent as [Mr A] and states that he was in Court.

1. It is unclear to the Tribunal whether the applicant is seeking to establish family violence based on evidence tested before a Court or based on a non-judicially determined claim of family violence. It appears that she has provided sufficient evidence in support of both bases.

2. With respect to family violence based on evidence tested before a Court, acceptable forms of court tested evidence are set out in reg 1.23; namely, a court injunction under the Family Law Act 1975; an Australian Court order for the protection of the alleged victim; or a conviction or finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim. Where such evidence is provided, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence: reg 1.23(1).

3. In this case, the Tribunal is satisfied that the Intervention Order made [in] March 2019 was made against [Mr A] for the protection of the applicant in relation to violence that occurred while the parties were in the relationship, after [Mr A] had an opportunity to be heard or otherwise make submissions to the Court. Therefore, family violence is taken to have occurred under reg 1.23 of the Regulations.

   CONCLUSION

4. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl 820.221(3).

5. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

6. On 25 May 2022, the representative wrote to the Tribunal to inform that the applicant intends to be outside Australia [between dates in] June 2022 [and] August 2022. The Tribunal is aware of the time of decision requirement in cl 820.411 and the Department’s policy of considering whether it is reasonable to defer making a decision when an applicant is outside of Australia for a short period of time (which would appear to be the case for the applicant in the present case). 

   DECISION

7. 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 820.211(1) of Schedule 2 to the Regulations

   ·cl 820.221(3) of Schedule 2 to the Regulations

   Justine Clarke
   Member

   
   

   ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   1.21 Interpretation

   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?

   (1)For these Regulations, this regulation explains when:

   (a)a person (the alleged victim) is taken to have suffered family violence; and

   (b)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)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)[…] 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:

   (a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or

   (b)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:

   (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

   (b)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:

   (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

   (b)the alleged victim is:

   (i)       a spouse or de facto partner of the alleged perpetrator; or

   (ii)      a dependent child of:

   (A)the alleged perpetrator; or

   (B)the spouse or de facto partner of the alleged perpetrator; or

   (C)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:

   (a)the Minister must consider whether the alleged victim has suffered relevant family violence; and

   (b)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

   (c)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:

   (a)an application for a visa includes a non-judicially determined claim of family violence; and

   (b)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:

   (a)an application for a visa includes a non-judicially determined claim of family violence; and

   (b)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.