1822149 (Migration)

[2023] AATA 2591

1822149 (Migration) [2023] AATA 2591 (17 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ettienne de Villiers Hugo

CASE NUMBER:  1822149

MEMBER:Meena Sripathy

DATE:17 April 2023

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations; and

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

Statement made on 17 April 2023 at 2:38pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased and judicially-determined claim of family violence – genuine relationship before relationship ceased – valid marriage in Australia and religious wedding in home country with families – documentation and supporting statements – coercive control and violence – apprehended domestic violence order – short duration and violence does not preclude genuine relationship – applicant currently in home country – required to be in Australia when visa granted – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.21, 1.23(1), Schedule 2, cls 820.211(2)(a), 820.221(3)(a), (b)(i), 820.411

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 on 13 July 2018 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 31 July 2017 on the basis of her relationship with her sponsor. At that time, 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).

3. 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. Relevantly to this matter the primary criteria include cl 820.211 and 820.221 which require that at the time of application and decision, the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl 820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). In the present case, the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.211 because the delegate was not satisfied on the evidence provided that the applicant and sponsor were in a genuine spouse or de facto relationship at the time of application and therefore the delegate did not go on to consider the applicant’s family violence claim.

5. The applicant applied for review of the decision on 31 July 2018. 

6. On 23 December 2020 and again on 27 January 2021 the applicant sought priority processing of her review application on the basis that the applicant was residing overseas with her infant Australian citizen child, having travelled there to obtain her divorce decree and was then stranded there as a result of the COVID 19 travel bans.  She has now obtained a final divorce and permanent custody order from the sponsor issued by the Family Court of Secunderabad, India, which substantiates her claims of the breakdown of the relationship due to family violence.  It was submitted that the applicant is stranded overseas due to the COVID 19 pandemic with her infant Australian citizen child, and together with the extensive delay already with her review application constitutes compelling reasons for priority processing. The requests for priority processing were refused by the Tribunal on 5 January and 1 February 2021.

7. The matter was constituted to the present Tribunal on 22 February 2023.  On 27 February 2023 the Tribunal wrote to the applicant to invite her to provide undated information relating to the status of her divorce, knowledge of the sponsor’ whereabouts and any further evidence or submissions addressing the issue of the existence of a spousal relationship between herself and the sponsor before it ended due to family violence.

8. The applicant provided a response, through her representative on 27 March 2023. 

9. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence before the Department

11. The applicant, an Indian national born in [Year], applied for the visa on 31 July 2017 while the holder of a Subclass 573 student visa. She was sponsored by [Mr A], an Australian citizen, born in India in [Year]. The application indicates the parties met in July 2015 at a [Workplace] where they both worked and subsequently developed a relationship. They married under Australian law [in] March 2017 and had a traditional religious wedding in India [in] April 2017 in the presence of family.  They commenced living together upon return to Australia, renting a unit from [May] 2017. The sponsor declared a previous relationship of a marriage to [Mr B] from [Year] which ended in [Year]. 

12. The following documents were included at time of application: copy of sponsor’s divorce order dated [June] 2016; two Form 888 Statutory Declarations dated in June 2017 from [C], the applicant’s cousin and [D], a family friend; an Australian National Police Check from the sponsor; notification by visa applicant that she was [Number] weeks pregnant with an expected due date for the birth of [Date]

13. On 28 March 2018 the applicant advised the Department by email that the relationship with the sponsor had broken down dur to domestic violence, and he left the family home [in] March 2018. A copy of a Final AVO issued by [Local Court] on [Date] was attached.  She also advised that a [child] of the relationship was born on [Date], and copy of [the] birth certificate was provided.

14. On 23 May 2018 the Department invited further information addressing the issue of whether the applicant was the spouse or de facto partner of the sponsor prior to the cessation of the relationship. The applicant responded with the following documents and information: a Statutory Declaration from herself dated 16 June 2018; Statutory Declaration from her cousin [C] dated 16 June 2018; tenancy agreement signed by her and the sponsor [in] May 2017; boarding passes for [Country] trip taken together in April 2017; emails addressed to both from property agents when looking for a place together; wedding photos; applicant’s bank statements highlighting transactions to and from the sponsor.

15. On 13 July 2018 the delegate, having considered this evidence and the information before them, refused the application on the basis of not being satisfied the applicant was the spouse of the sponsor at the time of application and she did not meet cl.820.211. The delegate did not therefore consider her family violence claims.

    Evidence before the Tribunal

16. As indicated above the applicant unsuccessfully sought priority processing of the application in December 2020 and January 2021, advising the Tribunal she was residing overseas with her infant Australian citizen child, having travelled there to obtain her divorce decree and then being stranded as a result of the COVID 19 travel bans.  

17. Upon constitution of the matter to the present Tribunal in February 2023, the Tribunal invited provision of further and updated information (also as indicated above).

18. On 27 March 2023 the applicant through her representative provided a submission and the following documents in support:

    ·Copy of Divorce and permanent custody order by Family Court of Secunderabad, India  dated [March] 2020 relating to the applicant and sponsor’s marriage, including a copy of the Memorandum of Terms of Compromise between the parties;

    ·statement by applicant dated 24 March 2023;

    ·additional photos of couple’s wedding and post pregnancy;

    ·evidence of transfer by applicant to sponsor’s mother of $801.71 in May 2017;

    ·applicant and sponsor’s phone records for period July 2016-July 2017 and January 2017 to January 2019;

    ·evidence of applicant’s medical expenses and bank statement during pregnancy; and

    ·provisional ADVO dated [Date] including grounds of the application, setting out several incidents between September 2017 to March 2018.

19. The submissions advise the applicant instructs she has no knowledge of her ex husband’s whereabouts since her visit to India in January 2019. In relation to the issue of the existence of a spousal relationship prior to the cessation due to family violence the representative makes the following submissions: the parties met and discussed marriage with each other’s families, including parents and siblings  in 2016 prior to the marriage;  the applicant in her recent statement describes actions of the sponsor prior to commencing living together as husband and wife which demonstrate that they had a genuine and continuing relationship; bank statements were previously provided to the Department demonstrating shared financial aspects of the relationship; phone records provided show the degree of contact between the parties and also with each other’s parents up until the time of separation in March 2018; photographs of the wedding and post birth of the child show that there was a commitment to the relationship at that time.

20. With regard to the family violence claims the representative refers to the Provisional ADVO Order which detailed the incidents on which the order was taken out, and the Final AVO Order made on [Date] as evidence of the applicant’s judicially determined family violence claim. 

21. In this case, the delegate was not satisfied on the evidence provided that the applicant was the spouse of the sponsor at time of application.  This is despite the evidence before the Department that the parties married in Australia and subsequently underwent a traditional religious marriage in the presence of family in India, after which they commenced living together in Australia. Evidence of a signed residential lease document was provided in support. In January 2018 a child of the relationship was born, evidenced by a NSW birth certificate naming them as parents.  It is not clear to the Tribunal from the delegate’s decision record or documents on the file provided to the Tribunal whether there were any specific concerns arising for the delegate or any other information or allegations which caused suspicion about the genuineness of the relationship.  Ultimately, It is not the role of the Tribunal to review the delegate’s reasons or reasoning, but rather to consider the matter afresh, and in doing so, it is able to take into consideration new material.

22. Before the Tribunal the applicant has provided a further statement providing additional context regarding the background of the relationship, and further documentary evidence in support including phone records, photos and a copy of the provisional ADVO which set out the grounds for the order.

    Were the parties in a spouse relationship at time of application

23. The Tribunal acknowledges that making an assessment of a relationship after it has broken down, and particularly in the context of a claim family violence, is especially difficult.  There is limited evidence from the sponsor and the circumstances of alleged abuse and violence between the parties colours the evidence of the relationship during that period. Additionally, in this case the period of the spousal relationship is relatively short, with the parties commencing cohabitation in May 2017 and the sponsor leaving the marital home in March 2018. The applicant, in her further statement, described several abusive and violent incidents that occurred even before they started living together in May 2017 and continuing during the relationship. The Tribunal notes a distinguishing characteristic of domestic and family violence that it may involve a complex pattern of controlling behaviour and violence over a period of time, more commonly now recognised as ‘coercive control’.[1]  Accepting or recognising that there was controlling and abusive behaviour in the relationship clearly cannot and should not preclude recognition of the relationship as a spouse relationship within the meaning of that term in s5F having regard to all relevant matters.

    [1] See for example Factors affecting risk - National Domestic and Family Violence Bench Book (aija.org.au)

24. Therefore and taking into account the context of the circumstances of domestic violence and evidentiary limitations, the Tribunal is satisfied that the applicant and the sponsor were in a spouse relationship which ceased [in] March 2020 due to family violence.  In reaching this conclusion, it has considered, and accepts, that the applicant and sponsor were living together from May 2017 until March 2018.  Regarding financial aspects of the relationship, it observes that there is no evidence of a joint bank account and minimal evidence of shared expenses (with only one transfer to her from him in November 2017 contained in bank statements of her accounts provided to the Department). The Tribunal accepts that the applicant made a financial contribution to his family’s school enterprise in India in this period. Her evidence in her recent statement that the sponsor refused to contribute to expenses relating to the pregnancy after being informed of the gender of the baby, and she paid for these herself suggests the financial aspects of the relationship in this case were consistent with the allegation of family violence, and not inconsistent with a spouse relationship.  The Tribunal accepts the parties’ marriage was known to, and accepted by, their respective families, as evidenced by the religious wedding they had in India, and the Form 888s submitted with the application indicate friends and family were aware of and believed the relationship to be genuine and ongoing. The evidence of phone records supports that they were in regular contact with each other and with family members of their respective families in this period. A child was born of the relationship evidencing a degree of commitment at some point in time. The contents of Statutory Declarations dated January 2018 provided by registered nurse and midwife, [Ms D], from [Hospital] and social worker, [Ms E], of [Hospital], who were involved in providing antenatal care to the applicant, supports her claims that she was living with, and experiencing abuse at the hands of the sponsor in this period.  The evidence of the Indian divorce order made in March 2020, and terms of compromise reached between them, also supports the conclusion that the parties were previously in a spouse relationship, from which a child was born and which has now ended.  

25. On balance, considering all of the evidence now before it, and in the absence of any specific adverse information contradicting the claims, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The Tribunal is satisfied the applicant meets cl.820.211(2)(a).  The Tribunal finds the applicant was sponsored at time of application by a sponsor who has turned18 years and is an Australian citizen, and therefore meets cl.820.211(2)(b). As she was the holder of a substantive visa at time of application, cl.820.211(2)(d) does not apply.

26. Therefore, the applicant meets cl. 820.211 at time of application.

27. The remaining issue is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

    Family violence claim

28. 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).

29. In the present case the applicant is seeking to establish family violence on the basis of evidence tested before a Court. Acceptable forms of court tested evidence as set out in reg 1.23, are: 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).

30. On the applicant’s claims, the only relevant form of evidence is a Court order. A Final Apprehended Domestic Violence Order dated [Date] was provided to the Department by the applicant on 28 March 2018. The Tribunal is satisfied that a court order was made against the 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 reg 1.23 of the Regulations.

31. 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.

32. The Tribunal observes that the applicant is currently outside Australia, having departed on 9 January 2019 on a Bridging visa B.  Noting that cl.820.411 requires the applicant to be in Australia when the visa is granted (although cl.801.411 allows an applicant to be in or outside Australia at time of grant), consideration may wish to be given to allowing her an opportunity to seek to return to Australia prior to making a further decision on the application, unless able to progress directly to the grant of the Subclass 801 visa.  

    DECISION

33. 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; and

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

    Meena Sripathy
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21 Interpretation

    …

    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.

    …

    violence includes a threat of violence.

    …

    1.23     When is a person taken to have suffered or committed family violence?

    (1)For the purposes of these Regulations:

    (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.