1817126 (Migration)

[2021] AATA 4922

1817126 (Migration) [2021] AATA 4922 (26 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1817126

MEMBER:Cathrine Burnett-Wake

DATE:26 October 2021

PLACE OF DECISION:  Melbourne

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

·cl 820.211 of Schedule 2 to the Regulations; and

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

Statement made on 26 October 2021 at 9:55am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – same sex de facto relationship which ceased – evidence of the relationship – pregnancy during the claimed relationship period – joint financial household liabilities – responsibility for children – emotional support – de facto relationship registered – limited social acknowledgment of the relationship – non-judicially determined family violence claim – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 1.15, 1.21-26, 2.03
Relationships Act 2008 (Vic)

CASES

Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
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 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 applied for the visa on 17 November 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 meet the threshold requirement that she was the de facto partner of the sponsor: cl.820.211(2)(a), and having made this finding that there was no partner relationship between the applicant and sponsor, did not proceed to consider the applicant’s claim of family violence.

4. The applicant appeared before the Tribunal on 15 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted via video and with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Were the parties in a de facto relationship which ceased?

7. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

8. In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3). Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

9. The applicant’s partner visa was made on the basis of being the de facto partner of her sponsor, [named]. This relationship was registered in Victoria under the Relationships Act 2008 [in] June 2015.

10. Under reg 2.03A(5) the 12-month length of relationship requirement for de facto relationships does not apply to registered relationships.

11. Regulation 1.09A refers to the matters to be considered in determining whether a de facto

    relationship under s 5CB exists.

12. Departmental policy states that consideration of these factors involves:

    •considering each individual relationship against all factors listed in regulation 1.09A(3) and

    •taking into account any other relevant information provided by the applicant (or information otherwise available to officers), assessing whether or not, on balance, the requirements of s5CB(2) are met and that a de facto partner relationship exists.

13. Decision makers must decide the weight to be given to each factor or characteristic. However, they are not, limited to the four factors at regulation 1.09A(3), but can consider any additional information that is reasonable and practicable on which a decision can be based.

14. The factors listed in regulation 1.09A(3) are:

    •not prescribed criteria (unlike Schedule 2 criteria) that must be satisfied before the parties will be regarded as having a de facto relationship

    •are not the only requirements that must be considered and

    •the relationship may exhibit other characteristics not referred to in regulation 1.09A(3).

15. The applicant has made claims she was subject to family violence including sexual, financial, and emotional abuse.

16. The Tribunal notes that professionals supporting the applicant have identified that the violence she experienced was family violence and that it occurred within the context of a de facto relationship between partners.

17. The applicant has made claims that because of the family violence she has limited documentary evidence of the relationship. Further that the breakdown of the relationship due to family violence meant that the usual avenues for seeking to demonstrate a genuine relationship were not available and she was not able to obtain further evidence of her relationship due to her fears of harm and the trauma she experienced.

18. The applicant’s lawyer has submitted that Collins v Minister for Immigration is relevant to the Tribunal’s considerations in this matter as it determined that in situations of family violence decision makers must be satisfied that a genuine relationship existed at least at one point in time.

19. The applicant acknowledges that evidencing the relationship is complicated and is due to the perceptions of same-sex relationships in her community. The sponsor hid the relationship from her ex-husband as she was fearful the children would be taken off her. A further complicating factor is the applicant fell pregnant during the claimed period of the relationship.

20. Notwithstanding these conceded complicated factors, the applicant submits that in taking into account all of the information provided, it must be considered that, at least at some point, it was a genuine de facto relationship and the couple demonstrated a mutual commitment to a shared life together.

    Reg 1.15A(3)(a) Financial Aspects of the Relationship

21. The Tribunal has before it bank statements from the joint bank account between the applicant and sponsor, dated December 2014 to July 2016.

22. Electricity and gas bills in joint names have also been provided demonstrating there was shared liability for utility bills.

23. The applicant claims the transaction history demonstrates shared day to day expenses such as food and bills. The Tribunal notes that sponsor’s Centrelink payments were paid into the joint account and cash the applicant earned working was also paid into the joint account.

24. The applicant acknowledged in written submissions provided prior to the hearing, which she also confirmed in verbal evidence at hearing, that the couple did not jointly own significant assets or have savings due to their financial situation at the time. However, that their financial arrangements were intertwined to the extent that their available resources were shared.

25. The prima facie evidence before the Tribunal is reflective that the applicant and sponsor shared a bank account for at least an 18-month period which income was deposited into and daily expenses were debited from, including their joint financial household liabilities.

26. The evidence submitted does support the claim that the financial affairs between the applicant and sponsor were intertwined, for at least an 18-month period.

    Reg 1.15A(3)(b) Nature of the household

27. At hearing the applicant explained how she met the sponsor, and how their relationship progressed.

28. The applicant told the Tribunal that she met the sponsor at a party around the beginning of 2013. The applicant said they hit it off, with the sponsor showing a lot of interest in her. She said they got along well and had a further connection as they came from the same village in Vietnam. At the time, she and another friend were looking for somewhere to live. When she mentioned this to the sponsor, the sponsor said she had spare rooms, and invited the applicant and her friend to stay with her.

29. The applicant stayed with the sponsor for 5 months during 2013. She said that during that time, their friendship grew, and they became close. The applicant stated that she started to develop romantic feelings for the sponsor during this time but hid them and did not divulge them to the sponsor. She said that she had fallen in love with the sponsor, but avoided divulging her true feelings, because of the stigma associated with female same sex relationships within their community and because she knew the sponsor had been previously married and had children so may not like women.

30. The applicant said it was a difficult time for her, as she had to come to terms that she was in love with a woman and it was not considered socially normal in her culture. So, to avoid her feelings and possible rejection she moved out of the house.

31. The applicant told the Tribunal that after she moved out, she still maintained contact with the sponsor, and they would ring each other multiple times per day and were still seeing each other on the weekend. The applicant told the Tribunal that it reached a point where she had to tell the sponsor about her feelings, so at the beginning of 2014, when the applicant was visiting for dinner, she told the sponsor how she felt. She said she was externally nervous as she was fearful the sponsor would reject her. The applicant told the Tribunal that when she revealed her feelings to the sponsor, that the sponsor also expressed the same feelings back. It was from this point she said they then made commitment to a shared life together.

32. The applicant told the Tribunal that she moved back in with the sponsor and shared all aspects of life together. She said they shared household responsibilities, such as cooking and cleaning. They opened a bank account and pooled their financial resources. They would socialise together and spend time together as a family. The applicant said she loved and treated the sponsor’s children like they were her own.

33. The applicant said that during 2014, they were ‘out’ as a couple to some friends. However, they hid it from the sponsor’s ex-husband as the sponsor was fearful that the ex-husband and his family would seek to take the children away, due to the cultural view on female same sex relationships being inappropriate and against their belief system.

34. The applicant said that she was so happy in the relationship that she wanted to come out to her parents in Vietnam. She said that she planned to do this during a trip back to Vietnam in November 2014.  The applicant told the Tribunal when she returned to Vietnam that telling her parents did not go as planned. She said that after coming out to them, her father locked her in a room and said she was never returning to Australia and took her possessions from her, including her phone. She said her father threatened harm against her if she did not change her ways, and said that she was sick and mentally unwell. She said that she was so frightened by this behaviour and being locked up, that when the opportunity arose, she managed to flee the family home when her grandparents came to visit. She said her father let her out of the locked room and told her to ‘act normal’ in front of her grandparents and not to bring shame. She said that she snuck out of the house when a meal was being prepared and fled to the safety of a childhood friend’s home. This friend then assisted her with support for a short time before she returned to Australia and to the sponsor.

35. The applicant said she was heartbroken over how her family had reacted to her ‘coming out’. She said the sponsor was extremely supportive to her during this time. She said that her mother made contact with her after she arrived back in Australia and said her father was very angry and had burnt any papers which had her name on them, and had been telling people she had fallen sick and ‘died’ and he no longer had a daughter.

36. The applicant said that following her trip to Vietnam, their lives were very busy. They were both working and sharing the household and child responsibilities. She said that she and the sponsor wanted to have another baby, and they decided she would as she was younger. She said that they planned to lodge a partner application but had to work towards earning and saving money for the application as the visa fee and lawyers fees were going to be about $13,000.

37. The applicant told the Tribunal that the sponsor became increasingly controlling over her movements and finances. She said the sponsor would read her phone messages and did not like her to leave the house alone unless she was going to work or school. She said that even then the sponsor would often insist on dropping her off and picking her up. She said that the sponsor took control of the bank account and would give the applicant money only when she needed it. She also said that the sponsor would say bad things about her friends and dissuade her from seeing them. She said she felt increasingly isolated. However, was very dependant on the sponsor so did not think too much of it at the time.

38. The applicant told the Tribunal that in early 2016, she found some strange messages on the sponsor’s phone and there had been several nights where the sponsor had not come home. The sponsor had told the applicant that her former mother-in-law was in hospital and had been spending nights there for comfort of the former mother-in-law. However, following the messages the applicant said she grew suspicious and then found out the hospital did not allow overnight visitors.  The applicant said she confronted the sponsor over this, and they had an enormous fight. The applicant said that she left the house very upset over the fight and met up with a friend, and they then went out drinking. The applicant said that she got extremely drunk that night and blacked out. She said she woke the next morning beside a man. She said that she could not recall the encounter, however, knew the man was a friend of a friend. She said she fled and returned home.

39. The applicant told the Tribunal that when she returned home, her and the sponsor made up. She said that things mostly went back to normal for a while until several months later she realised she was pregnant. She said she did not know what to do. She said she contacted the father, and he wanted her to have an abortion as he was married. She however, decided to keep the baby. She said that she then had to tell the sponsor about the pregnancy. She said when she told the sponsor, initially the sponsor was very upset, and slept in the other room. However, the next day the sponsor told her that she was forgiven, and they would raise the baby together as they had planned to have a child together anyway.

40. The applicant told the Tribunal that during the pregnancy the sponsor became more controlling and she became more hostile towards her. She also would not let her see any friends and they would argue a lot and the sponsor would often throw things in anger. The applicant said that it was around this time too that the sponsor started to invite a man over for dinner. She said the sponsor would taunt her and tell her that she was having sex with him. The applicant said that this behaviour was ongoing, and the sponsor would often force her to preform sexual acts on her. The applicant said that she still loved the sponsor during all this and was made to feel guilty over falling pregnant and that sponsor made her think she deserved this treatment as punishment.

41. The applicant said that after the birth of her child, it reached a point where the relationship broke down because of the abuse and she moved out. She said that for the following months the sponsor would still try and convince her to come back, and she did return to the home on a few occasions to spend time with them to try and reconcile, however, the sponsor was still exhibiting controlling behaviour so she ended the relationship for good and cut ties.

42. The evidence before the Tribunal about the nature of the household is primarily through statements made by the applicant both in written form and verbally at hearing, as well as a statutory declaration from a friend which confirms the applicant’s narrative of events.

43. However, there is also evidence before the Tribunal that the applicant and sponsor did live at the same address. As evidenced through bank statements, utilities and other documentation listing the applicant at the address. The verbal evidence about the nature of the household at hearing was also consistent with previous written statements.

44. Another supporting piece of evidence is the couple registered their de facto relationship in June 2015. This was after living together and sharing their finances for a 6-month period.

45. The Tribunal on balance finds that the applicant and sponsor did indeed reside together, and their relationship was more than friends or acquaintances such as a house share arrangement. The Tribunal is of the view that the nature of the household, was more consistent with that of a de facto couple.

    Reg 1.15A(3)(c) Social aspects

46. The Tribunal has before it a number of photographs of the applicant and sponsor together with friends and family, indicating that they ‘undertook joint social activities, and have met each other’s friends and families’.

47. There are also numerous photos of the applicant with the sponsor and her children undertaking various activities as a family or within the home.

48. The Tribunal also notes the statutory declaration sworn by [Friend A], a friend of the applicant outlining how she was introduced to the sponsor as the applicant’s partner and visited them on multiple occasions in their family home.

49. The applicant conceded that they did not share their relationship with many people due to concerns regarding community perceptions of same-sex relationships and also because of the concern that the sponsor’s ex-husband finding out about their relationship and his family seeking custody of the children as a result.

50. The Tribunal acknowledges that cultural perceptions regarding same sex relationships can be challenging for some to accept and those in them can face being outcast from their community. As per the applicant’s evidence her own family have not been accepting of her sexuality and she has been ostracised from them, with her father ceasing ties and all acknowledgment of her due to her sexuality.

51. Although there is limited evidence about the social aspects of the relationship, there is some. Being the photographs and the supporting statutory declaration of [Friend A].

    Reg 1.15A(3)(d) Nature of commitment

52. The applicant claims that the sponsor provided significant emotional and practical support to her as her de facto partner.

1. The applicant made claims that the commitment to register the relationship, to prepare and apply and be jointly responsible for the visa application, to share finances and share day to day expenses as a couple and to live in together in a romantic and sexual relationship indicates that at the time of the visa application they saw the relationship as a long term one.

2. The applicant also claims that her relationship with the sponsor’s children, along with the commitment to raise her child together as a child of the relationship after the initial shock of the pregnancy was overcome also demonstrates the commitment.

3. The applicant has submitted that the fact that the relationship deteriorated and later ended due to abuse does not negate that these commitments were made to each other at an earlier point in the relationship.

4. The applicant submitted that the relationship was of deep meaning to her despite the abuse she experienced from the sponsor and she continued to support the sponsor and work on the relationship as she had genuine love and care for her and shame around the impact of her mistake.

5. The applicant claimed that concerns that the sponsor was not faithful to her in early 2016 led to the argument that led to the incident during which she became pregnant. There is no evidence before the Tribunal that the applicant had an ongoing relationship with another person who could be considered a partner before the applicant told the sponsor that she was pregnant.

6. Based on the evidence, the relationship started to deteriorate in early 2016 and continued to do so thorough 2016 until the relationship permanently ceased.

7. The relationship between the applicant and sponsor was not linear. However, life never is. Often personal relationships are complicated, messy and do not end well. When assessing relationships as a decision maker, one must be mindful not to be closed minded, or apply ridged assessments of what relationships should be like based on their own personal belief system. Sexuality is also complex, and the Tribunal is mindful that individuals may have relationships or encounters with both sexes and it is possible to have had a genuine relationships with both and a subsequent relationship or encounter with a different sex does not necessarily undermine the genuine nature of any previous relationship.

8. The applicant conceded that her relationship was complicated and evidencing it was equally so, given the cultural sensitivities of female same sex relationships and because it broke down due to family violence.  However, there is evidence before the Tribunal that there was a relationship, albeit it is somewhat limited. There is also no evidence to contradict the claims made.

9. As such and in line with the principles in Collins v Minister for Immigration as the applicant has made claims of family violence, the Tribunal cannot disregard the supporting evidence, as it is of sufficient volume and quantum to be satisfied that a genuine relationship existed at least at one point in time.

10. Having regard to the findings above and the evidence before it, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased.

11. Therefore, for the above reasons, the Tribunal is satisfied the applicant was the spouse of the sponsor at time of application and meets cl.820.211(2)(a).  On the evidence of the sponsorship form signed by the sponsor on 5 November 2015 the Tribunal finds the applicant meets cl.820.211(2)(c) and as the applicant held a substantive visa at time of application cl.820.211(2)(d) does not apply. 

12. Therefore, the applicant meets cl.820.211(2).

    Family Violence claim

13. The remaining issue for consideration in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

14. 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. 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).

15. 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?

16. 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.

17. 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 (see IMMI 12/116).  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).

18. In the present case the applicant seeks to rely on the following evidence to make a non judicial claim of family violence in the form of:

    ·Statutory declaration by [Social Worker A], social worker at [Health Service 1], dated 20 November 2017. The declaration states that in her opinion, the applciant was subject to family violence; names the alleged perpetrator and gives reasons for the opinion.

    ·Statutory declaration by [Psychologist A], registered psychologist at [Health Service 2], dated 25 October 2017. The declaration states that in her opinion, the applicant was subject to family violence; names the alleged perpetrator and gives reasons for the opinion.

    ·Statutory declarations completed by the applicant, identifying the alleged perpetrator and detailing the family violence experienced, dated 17 November 2017 and 7 May 2020.

19. The Tribunal has considered the above evidence against the regulatory requirements and is satisfied that statutory declarations meeting the requirements of r.1.25(2) and 1.26 have been provided. Specifically, the Tribunal accepts the evidence from [Social Worker A] and [Psychologist A] meet the requirements set out in Schedule 1 of Immi 12/116 in respect of their qualifications and professions, and content. 

20. Therefore, 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?

21. The Tribunal has carefully considered the information in the statutory declaration and letter from [Social Worker A] and [Psychologist A], as well as the supporting statutory declaration from the applicant’s friend, [Friend A]. It has also had the benefit of questioning and hearing from the applicant directly during a video hearing. On numerous occasions during the hearing she became clearly distressed and upset when talking about the sponsor and her experiences. The Tribunal considers her evidence was spontaneous, and her reactions and demeanour during the hearing were credible and authentic and consistent with the claims she has made. 

22. Having considered all of the evidence before it, the Tribunal is satisfied, for the purposes of r.1.23, that the applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship. As such, the applicant is taken to have suffered family violence in the relevant sense: r.1.22.

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

    Decision

24. 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 of Schedule 2 to the Regulations

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

    Cathrine Burnett-Wake
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

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

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).