1828365 (Migration)

[2022] AATA 5123

1828365 (Migration) [2022] AATA 5123 (30 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)

CASE NUMBER:  1828365

MEMBER:Anne Grant

DATE:30 November 2022

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(2) of Schedule 2 to the Regulations; and

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

Statement made on 30 November 2022 at 8:47am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties validly married – Certificate of Marriage provided – applicant has suffered family violence committed by the previous sponsor – mutual commitment to a shared life together – genuine married relationship at the time of application genuine and committed spouse relationship at the date of decision – credible and honest witness – decision under review remitted 

LEGISLATION
Migration Act 1958, ss 5F, 65, 359
Migration Regulations 1994, rr 1.15,1.23, 1.24, Schedule 2, cls 820.211, 820.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 27 May 2016 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 visa applicant did not satisfy cl 820.211 because they were not satisfied that the visa applicant and sponsor were spouses at the time of application.

4. The applicant appeared before the Tribunal on 17 November 2022 to give evidence and present arguments. The Tribunal also heard evidence from the visa applicant’s sister, Ms [A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review. 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

   Whether the parties were in a spouse or de facto relationship at the time of application

7. Clauses 820.211(2) 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. In the present case the applicant claimed to be the spouse of the sponsor who is an Australian citizen. 

8. ‘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). In forming an opinion about these matters, regard must be had 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 1.15A(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.

9. Therefore, the first issue for consideration in this case is whether the visa applicant and sponsor were spouses at the time of application.  The delegate found that they were not.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The visa applicant was initially in a de facto relationship with a different Australian citizen, but the evidence reflects that this relationship ended in 2015 and the applicant commenced a relationship with the sponsor late in that same year. The evidence is that the visa applicant and sponsor had known each other and had a brief relationship when they were young and then by chance reconnected in Australia when she was working in a business owned by the sponsor’s brother.  The evidence is that initially they were friends but when her other relationship ended, the visa applicant and sponsor started seeing each other and soon moved in together (at the home of his parents) in December 2015.  They married [in] July 2016 at [Suburb 1].  A marriage certificate has been provided.  On the evidence, the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met at the time of application?

11. The delegate found that there was insufficient evidence about the various aspects of the relationship to satisfy them of the existence of a genuine and continuing relationship between the applicant and sponsor. 

12. In support of the application for a visa and this review, the applicant has provided the following documents: 

    ·Certificate of Marriage between visa applicant and sponsor at the Registry of Civil Marriages in Melbourne Victoria [in] July 2016.

    ·Application for migration to Australia by partner dated 27 May 2016.  At that time, the visa applicant and sponsor were de facto partners who declared that they were living at [address].  (The application says this is in NSW but this is an obvious selection error because it gives the correct Victorian postcode). The application provides the date of committing to a de facto relationship as 24 December 2015, and notes that the parties first met in Bac Lieu, Vietnam in December 2003.

    ·In the application for protection, the visa applicant gave the following description of the ‘development of the relationship’: 

    “We first met each other around Christmas 2003 when [the sponsor] visited his sister in Vietnam and accompanied his friend to Bac Lieu to visit our common friends. At that time, [Mr B], my ex-partner and me was in a relationship and we got his contacts as a friend. In [March] 2014 I arrived Australia with my ex-partner and he invited us for a dinner and kept in touch as a friend. A few months later he told me that he needed to come back to Vietnam to short out unfinished businesses with the restaurant where he was a manager and started to fell out of the relationship. I was very confused of his behaviour and repeatedly ask him if I should go back to Vietnam with him or what exactly he would want me to do? I had the feeling that my ex-partner did not want to continue the relationship with me and started to contact my current partner for advices and any information that he would know of. Unfortunately he also did not know what happened to my ex partner but gave me good advices and helped me to arrange a trip to Vietnam. He told me to count on him whenever I need help and wished that we would be able to sort it out. The night before I came back to Vietnam I went to his house and cried a lot on his shoulders. He was very sympathetic and told me that he would do anything to help me and hope I would be happy again. He also said I was a decent girl and deserve for happiness, but because I was in a relationship with his friend, there are limitations that he could do to help. Following his advice, I went back from [July] 2015 and stayed until [Aug] 2015 attempting to find out the truth. During my stay, I was devastated to learn that [Mr B] is now in a new relationship with a young [girl]. However it was good for me to find out.  I came back to Australia and told [the sponsor] that I was no longer in a relationship with [Mr B]. During his birthday party he proposed to me and I happily accepted his proposal. We moved in together just before Christmas 2015.”

    • A copy of the delegate’s decision made on 19 September 2018 was provided to the Tribunal with the applicant’s application for review lodged on 27 September 2018.
    • Email from applicant’s representative advising that the Relationship has ended due to family violence, 18 August 2022.
    • Bank Statements [addressed] to both applicants at various addresses for the period May 2016 to May 2022
    • [Energy] bills addressed to the applicant and sponsor at [Address 1] [Suburb 1] – for the period 14 May 2018 to 13 March 2020.
    • Photographs of the applicant and sponsor and the sponsor’s son at various events over several years; including with friends and with family members.

    ·Plane tickets for travel to Vietnam for the visa applicant, the sponsor and the child [Mr C] on [date] December 2017 and return on[date] February 2018.  

    ·Speeding fine issued to the sponsor on [date] December 2017 showing his address as [Address 1] [Suburb 1]. 

    • Statutory Declaration by applicant dated 19 September 2022. 
    • Statutory Declaration and annexed report from [Dr D], Clinical psychologist, a registered psychologist with the Psychologist Board of Australia dated 10 October 2022.
    • Statutory Declaration and annexed report from [Ms E] social worker and member of the Australian Association of Social Workers dated 3 October 2022 ( a typographical date on the annexed report is clearly incorrect). 
    • Statutory Declaration from the applicant’s sister [Ms A].  In this statement [Ms A] confirms that she and her mother had witnessed the applicant with bruises; and the sponsor coming home drunk and being loud.  She states that he hurt her sister but that she was afraid to report him. She notes that during the lockdown, things got worse and “my mum and I would witness a lot of things.  We don’t want her to continue to suffer.”
    • Statutory Declaration from the applicant’s friend [Ms F].  In this statement, [Ms F] states that she has known the applicant for over 5 years as they work in the same [workplace].  She has met the sponsor when introduced by the applicant to her husband.  She states that she observed that they were very much in love, and that the applicant treated the sponsor’s son [Mr C] like her own son.  During covid they didn’t see each other so much but they still spoke.  She noticed that the applicant had become doubtful about her relationship, said that she and the sponsor got into regular fights, and that she was worried he cheated on her and will soon leave her.  She has been very sad since telling her that the relationship has ended.

13. I have had the opportunity to discuss the applicant’s circumstances with the applicant and her sister in person.  I did have initial concerns on the written evidence that the second relationship with the sponsor took place so soon after the end of the visa applicant’s first relationship and her arrival in Australia with her former partner.  However, after hearing her evidence and that of her sister I found the visa applicant to be frank and credible and I accept her evidence about her first relationship, how that ended, her relationship with the sponsor and how it progressed.

14. The applicant gave evidence that in December 2015, she moved in with the sponsor at his parent’s home in [address].  This house was shared with the sponsor, his son, his parents, one of his brothers and wife, a sister and a nephew.  There were nine people living in the house. She described his family as very open hearted and how they regularly held family gatherings on the weekend where extended family were always welcome. The applicant, the sponsor and his son all shared one room.  Most of the housework and financial business of this house were taken care of by the sponsor’s parents, but the applicant would contribute to the cooking and cleaning as necessary. 

15. The applicant described how her mother and sister would also come to some of the weekend parties at the sponsor’s family home and saw that she was living with ‘too many’ others at that home.  For that reason, they invited her and the sponsor and the child [Mr C] to move in with them, which they did in 2017, to the property at [ Address 1] [Suburb 1] which they rented. In that house, there were only the five of them living there. The applicant said that her mother mostly did the household chores with the applicant helping out, and the sponsor took care of gardening and care for his son. Meanwhile, she continued to work at the [workplace] and the sponsor did casual work. 

16. In these circumstances and living arrangements as described by the applicant, I note that it would be quite difficult for the applicant to provide evidence about financial contributions and pooling of resources to meet bills. I note that she has provided bank account statements for a joint account and energy bills in the name of herself and the sponsor at [Address 1] [Suburb 1].  When I asked how the energy bills were in their joint names given her evidence about joining existing parental households, she stated that this was done on the advice of the migration agent so that they would have some evidence of their cohabitation. I accept that the applicant and sponsor were in practical terms supported by their respective families and had limited financial contributions to make to their shared households from the start of their cohabitation as a couple. I consider this must be given some regard when assessing any limitations on the documentary evidence provided about the various aspects of the relationship. 

    Financial Aspects of the Relationship

17. In the written application, the visa applicant wrote that she worked as a casual [worker] and the sponsor as a labourer, but he that he could not seek full time work because he is a full-time carer for his son.  She states that they have a joint bank account where they deposit money and spend together for general household expenses.  The sponsor is still responsible for most expenses for the education of his son.

18. Bank Statements have been provided for a joint account in the name of the sponsor and applicant from May 2016 to May 2022.  These statements reflect that the account was opened on 20 November 2015, consistent with the applicant’s evidence.  The applicant confirmed that when that account was opened, she was still living with her mother and sister and not with the sponsor.  The evidence is that they opened the account when they started planning to be together – that is, when they made an emotional commitment to each other. 

19. The bank accounts disclose regular use including deposits and withdrawals from 2016 until April 2021 but reflect that it has not been used since then. The statements from May 2016 to November 2017 are addressed to the applicant and sponsor at [Address 2].  From May 2018 to May 2020 they are addressed to the applicant and sponsor at [Address 1] [Suburb 1]. From November 2020 the statements have been addressed to them at [Address 3], [Suburb 1]. On the evidence before me, each of these addresses were the homes of the applicant’s mother and sister (where she gave evidence that she lived before moving in with the sponsor’s family and then again after 2017.) Consequently, I consider that the addresses on the bank statements do not provide supporting evidence of the applicant and sponsor’s time living with his parents from December 2016 to November 2017.

20. The bank statements also do not reflect deposits of Centrelink income received by the sponsor, which suggests that he maintained a separate account into which his benefit was paid.  From June 2020, the bank statements reflect that at least one of the persons operating the account was regularly in [City 1], whilst the other was still depositing money in [Suburb 1].

21. I consider that the bank statements provide some support for the applicant because they reflect that she and the sponsor opened a joint account, and that it was regularly used in the period she claimed they were together.  When considered with the lack of information about the sponsor’s depositing of income into the account, the account does not reflect a complete or full pooling of all financial resources.  Nonetheless, money from the account appears to have been accessed by both the applicant and sponsor.  

22. The applicant has provided [energy] bills addressed to the applicant and sponsor at [Address 1] [Suburb 1] – for the period 14 May 2018 to 13 March 2020. This provides some support for the applicant and sponsor living at that address with the applicant’s mother and sister for that period.

23. Also provided was a letter sent to the sponsor by Centrelink at [Address 1] on 1 August 2018.  This strongly suggests that the sponsor had advised Centrelink that he was residing at that address, and I consider this to be a significant document because of the need to keep Centrelink apprised of changes to your address, in part because of the importance of receiving correspondence about your rate of family tax benefit, as this document is.  It also demonstrates an acknowledgement of the relationship consistent with the applicant’s evidence to external (and official) organisations.

24. The applicants do not jointly own any property, or have any joint liabilities.  The evidence does not suggest that either of them bears financial responsibility for a legal obligation of the other. 

25. Overall, consideration of the financial aspects of the relationship suggests that the applicant and sponsor shared limited living costs in the homes they shared with their respective families from 2016 to mid-2021.  These costs were met mainly from the joint bank account into which the applicant’s salary was paid. I give this a little weight in favour of the applicant and sponsor being in a genuine and continuing relationship at the time of application for the visa.

    Nature of the Household.

26. In the written application, the visa applicant states that she cooks and cleans every day for her partner and stepson.  Her partner fixes broken household things and looks after gardening and teaching his son.  He sometimes helps with cleaning the house, washing the dishes or the clothes.  He loves to cook when there are friends or family visiting.  He puts out the rubbish and cleans the toilet as his voluntary tasks. 

27. At hearing, the applicant acknowledged that the contribution to the households they shared with their respective families was limited because of the management of those households by their parents, though they both contributed generally to those homes. I accept that they lived together from December 2016 until at least early 2021 in shared homes with the sponsor’s family initially and then with the applicant’s family from November 2017.

28. The applicant said that she cared for the sponsor’s son as if he were her own. There is evidence of them travelling together as a family, and shared basic household tasks as necessary. Consideration of this factor suggests that the applicant and sponsor were considered a couple by the households in which they lived, and contributed a proportion of the labour and day to day requirements needed in those households.  I give it some weight in favour of them being in a genuine and continuing relationship.

    Social Aspects of the Relationship

29. In the written application, the visa applicant states that she and the sponsor are known as being in a mature relationship by friends and family. She states that she loves her step-son as her own and he calls her ‘Mum’ which makes her proud, and that ‘everyone’ thinks that they are fit for each other and compliments them on their devoted love for each other.

1. At hearing the applicant reiterated that everyone in their family and friend groups considered them to be a married couple, and treated them as such.  She referred to the photographs taken over many years and different occasions and locations such as birthdays, weddings and Christmas, in Australia and in Vietnam; which had been submitted in support of the application. The applicant said that she lived with the sponsor as his wife for several years and she still keeps in touch with his family, particularly his sister. She stated that for a long time after he walked out, she hoped that the sponsor would return to her and his family expressed to her that they hoped that he would do so, too. In her evidence, the applicant’s sister confirmed that her sister hoped for a reconciliation for some time after he left and was devastated by the breakdown of the relationship and his behaviour.  She also gave evidence that her mother would still probably prefer it for the couple to have stayed together due to her traditional views about failed marriages. I asked if that was so even though she had witnessed the results of his violence to the applicant (discussed later in this statement).  She responded “Unfortunately, yes.” 

2. I note that many of the photos provided include family and friends and the sponsor’s son. Some photos depict them as a family travelling by plane together and I found those photographs to be a significant indicator of the applicant, sponsor and the sponsor’s son presenting publicly as a family and of a genuine ongoing relationship. I am satisfied that the applicant and sponsor presented themselves as a married couple and that they planned and undertook joint social activities together, including international and domestic travel.

3. The applicant has provided supporting statements from her friends and family, who have confirmed that they considered that the applicant was in a genuine loving relationship with the sponsor, whilst noting that the relationship encountered problems and has now ended.

4. Consideration of the social aspects of the relationship strongly suggests that the applicant and sponsor were considered by friends and family and presented themselves to the wider community as a married couple.

   Nature of the applicant and sponsor’s commitment to each other.

5. The written application states:

   We deeply love and fully respect each other. [Name] (my partner) has been the only shoulder for me to cry on whenever I needed help. He helped me to go through the pains and odds with my ex-partner and never tried to take advantages out of it. We would like to spend the rest of our lives together and caring for our son to help him becoming a good citizen in Australia.

6. The applicant’s statements and her evidence reflect that she loved the sponsor and was committed to him. They were married in 2016, and the applicant supported her husband in the care of the sponsor’s son as his step-mother. As noted above, the evidence suggests that they were treated as a committed couple from late 2015 by family and friends.  The applicant’s sister has confirmed that her sister loved the sponsor and struggled to manage his violent and abusive conduct to avoid referring him to police. Whilst direct evidence about the sponsor’s commitment to the applicant is limited, in all the circumstances of this review I am satisfied that the sponsor was also committed to a marriage at the time of application to the exclusion of all others, and that he and his son lived together with the visa applicant on an ongoing basis.

7. I find that the applicant and sponsor were in a committed relationship from October 2015 until approximately April 2021 (though there may be some argument that the relationship actually ended prior to then, given the sponsor’s conduct in leaving and returning on many occasions after apologising for his aggression).  I am satisfied that they lived together from December 2015 until the relationship came to an end, even though they had some periods apart in the deterioration of their relationship. I consider that the evidence suggests that they have provided each other with companionship and emotional support until the relationship failed due to the conduct and violence of the sponsor. I consider that the evidence suggests that they each considered the relationship to be a long-term relationship at the time of applying for the visa.   

8. Having considered the matters in reg 1.15A(3)(a), (b), (c) and (d), I am satisfied that at the time of application the visa applicant was the spouse of the sponsor; that they were married to each other under a marriage that is valid, that they had a mutual commitment to a shared life as a married couple to the exclusion of all others; that the relationship between them was genuine and continuing and that they lived together on a permanent basis.

9. The sponsor is an Australian citizen.  There is no suggestion in this case that he is or was a person who was prohibited from being a sponsoring partner.  At the time of application, the applicant was sponsored by her spouse.  On the information and evidence before me, both applicant and sponsor were over the age of 18. Subclauses 820.211(2)(a) and (c) are satisfied.

10. At the time the applicant applied for the visa, she held a subclass 309 visa. At the time she applied for this visa, she withdrew the second stage application for a partner visa related to her previous partner.  I am satisfied that the applicant therefore satisfied subclause 820.211(d) at the time of application.

11. On the basis of the above I am satisfied that the requirements of s 5F(2) are met at the time of the visa application, and that the applicant satisfied cl 820.211(2) at the time of application. 

    Time of decision criteria.

12. In written evidence provided in submissions from her representative prior to the hearing and in statements from the visa applicant, a clinical psychologist and a social worker, I was informed that the relationship has ceased and that the visa applicant was claiming that she had been subjected to domestic violence by the sponsor.

13. On the basis of the evidence before me, I find that the relationship has ceased in approximately April 2021.  Therefore, the visa applicant is no longer the spouse of the sponsor and no longer satisfies cl 820.211(2). 

14. In those circumstances, I have considered whether the provisions of s.820.221(3) apply in this case.  It provides: 

    (3)  An applicant meets the requirements of this subclause if:

    (a)  the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

    (b)  either or both of the following circumstances applies:

    (i)  either or both of the following:

    (A)  the applicant;

    (B)  a dependent child of the sponsoring partner or of the applicant or of both of them;

    has suffered family violence committed by the sponsoring partner;

    (ii)  the applicant:

    (A)  has custody or joint custody of, or access to; or

    (B)  has a residence order or contact order made under the Family Law Act 1975 relating to;

    at least 1 child in respect of whom the sponsoring partner:

    (C)  has been granted joint custody or access by a court; or

    (D)  has a residence order or contact order made under the Family Law Act 1975; or

    (E)  has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

    Note:          For special provisions relating to family violence, see Division 1.5.

15. I am satisfied that the applicant would continue to meet the requirements of subclause 820.211(2) except that the relationship between the visa applicant and sponsor has ceased.  Subclause 820.221(3)(a) is satisfied.

16. The applicant has provided evidence claiming that she has suffered family violence committed by the sponsoring partner, and therefore seeks to rely on satisfying subclause 820.221(3)(b). 

17. Regulation 1.23 describes ‘when a person is taken to have suffered family violence’, and requires the production of evidence as described within the regulation or prescribed for the purpose of the regulations in order to satisfy a decision maker of the claim.  There are no court orders in this case and no joint undertakings made by the parties.  Therefore, the applicant must satisfy the evidentiary requirements for a non-judicially determined claim of family violence and present evidence in accordance with regulation 1.24 that the applicant has suffered relevant family violence committed by the sponsor.

18. Regulation 1.24 provides as follows:

    1.24  Evidence
                       The evidence mentioned in paragraph 1.23(9)(c) is:
       (a)  a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
       (b)  the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.

19. The type and number of items of evidence described in 1.24(b) is outlined in IMMI12/116 “Specification of Evidentiary Requirements”.  This instrument specifies that a minimum of two different types of evidence be given, including (relevantly for this case) the following:

    ·Statutory declaration made by a member of the Australian Association of Social Workers, or a person who is eligible to be a member of that Association who has provided counselling or assistance to the alleged victim while performing the duties of a social worker; and/or

    ·Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist.

20. In the case of statutory declarations by a social worker and or a registered psychologist who is qualified under the instrument to give a declaration, the declaration must include a statement that in their opinion the alleged victim was subject to family violence, detail the reasons for the opinion, and must identify the alleged perpetrator.

    Has the applicant provided the required evidence? 

21. The applicant has provided a statutory declaration dated 19 September 2022. In this statement, the applicant describes the history of her relationship with the sponsor.  She describes how once they moved out of his parent’s home, he gradually changed and told her that she should stop work, because it was affecting his Centrelink benefits.  He began to argue with her, drank a lot and came home drunk. On the first occasion that he physically assaulted her, he choked her neck and pushed her against the wall of the house.  He started a pattern of apologising after a few days and then promising not to do it again but the violence continued and became worse.  The applicant describes how the sponsor repeatedly forced her to have sex with him against her will.  He began to hit her more and she would be left with marks.  On one occasion his assault left her with a bad cut under her nose. She described being ashamed and scared.  Things became worse during the pandemic and lockdowns. Ultimately, she states that she moved with her sister to get away from him. She states that “I don’t know how else to prove my relationship with my husband was genuine but all I can say is that he was my everything and I am still in shock and traumatised from everything that he has done to me.”

22. The declaration provides extensive detail about the allegations of relevant family violence committed by the sponsor and that she was in fear for her wellbeing and safety.  I am satisfied that the applicant’s statutory declaration satisfies the requirements of r.1.25.

23. I have also considered a statutory declaration and attached letter from clinical psychologist [Dr D] dated 10 October 2022.  In that report and declaration, [Dr D] states (as well as outlining the description of violence provided by the applicant in multiple sessions) that:

    23. The relevant family violence [the applicant] experienced from [the sponsor] has caused her a lot of distress and trauma and resulted in her suffering from Posttrauamtic Stress Disorder as well as Major Depressive Disorder with Anxious Distress. She has lost motivation, self-confidence, socially withdrawn as well as struggling to deal with the nightmares that she experienced in relation to the relevant family violence. She continues to struggle to cope with her depression, anxiety and trauma. She is trying to cope with the verbal, emotional, psychological, physical and sexual abuse. During this period of time [the applicant] needs stability in her life, support and understanding.

    24. [The applicant]’s psychological presentation, depression and anxiety occurred as a result of the family violence that she suffered from [the sponsor]. [The sponsor] verballed abused her with his swearing and screaming using offensive language. He berated her, belittled her and degraded her when she tried to express her concerns about his alcohol consumption, going out late with his friends as well as cannabis use. [The applicant] was also a victim of physical and sexual abuse in which she was beaten, slapped, chocked, pinned to the ground and unable to move as well as being forced to engage in sexual intercourse against her will. She was told by [the sponsor] to fulfill her duties as a “good Vietnamese wife” and when she refused to comply, he would disregard her explanations and still continue to exert his power and dominance over her. [The sponsor]’s violence left [the applicant] feeling helpless, worthless, useless and powerless. His abuse was extreme, pervasive and extensive. [The applicant] lived in fear of [the sponsor] and feel into the cycle of the “battered wife syndrome” in which she made excuses for him, hoped that he would change and he took away her self-confidence making her feel that she could not live or survive without him.

    25. Based on my professional opinion, [the applicant] has experienced family violence including verbal, emotional, psychological, physical and sexual abuse perpetrated by [the sponsor] during the course of their marriage. [The sponsor’s] behaviours caused [the applicant] to fear for her safety and well-being during the course of their marriage.   

24. [Dr D] is a registered psychologist. I consider that this report by [Dr D] clearly states in her opinion the applicant has been subjected to family violence.  She details the reasons for that opinion and identifies the sponsor as the alleged perpetrator.   

25. The applicant has provided a statutory declaration and attached report from social worker [Ms E]. [Ms E] states that she has provided six counselling sessions to the applicant, first meeting her on 19 July 2022.  In this report, [Ms E] outlines the history of domestic violence described by the applicant which is consistent with the information in the visa applicant’s statement.  In this report the applicant stated that he finally left home for the last time around April 2021 and when she contacted him he told her that he was not returning.  He later blocked her number.  [Ms E] reports the following:

    “30.  During the course of the relationship, [the applicant] experienced severe physical and sexual assault which greatly impacted her physical and mental wellbeing. [The sponsor]’s abusive actions towards her also caused [the applicant] to suffer from physical and emotional pain. She was forced to submit to his demands to have sex, oftentimes also experiencing physical assault as [the sponsor] would pin her down and beat and choke her while having sexual relations. He also slapped and beat her on many occasions, which were also witnessed by the other family members who attempted to protect [the applicant].

    31. The psychological, emotional, and verbal abuse perpetrated by [the sponsor]. [The applicant] was made to feel belittled, dismissed, and unsupported by the person whom she thought would protect her and promised to love and take care of her. [The sponsor]’s aggressive behaviors around the house made [the applicant] feel scared about her own safety as she did not know if [the sponsor] would physically hurt her even more. Due to his actions, she was too afraid to stand up for herself and to report the abusive to the police as she was scared of the consequences if [the sponsor] found out—indicating the extent to the fear and trauma that she has gone through. Furthermore, [the sponsor]’s empty promises, as well as his sudden departure from their home made her feel even more hopeless and devastated. She did not expect that [the sponsor] would do such things to her, especially with his words and promises that made at the start of the relationship.”

26. [Ms E] is a member of the Australian Association of Social Workers.  I am satisfied that the report states that in her opinion the applicant was subjected to family violence and identifies the sponsor as the alleged perpetrator.  She has given detailed reasons for the opinion.

27. I consider that the applicant has provided the specified amount and type of evidence required by the regulations and the instrument.  A non-judicially determined claim of family violence has been made under r.1.24.  The visa applicant gave evidence consistent with her statutory declaration.  Her evidence was also consistent with the information and details outlined in the reports from her psychologist and social worker.

28. Having considered all of the evidence before me, I am 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.

29. As the relationship between the visa applicant and sponsor has ceased, and the visa applicant has suffered relevant family violence committed by the sponsor, I am satisfied that the applicant would continue to meet the requirements of subclause 820.211(2) except that the relationship between the applicant and sponsoring partner has ceased and that the applicant has suffered family violence committed by the sponsoring partner as described in clause 820.221(3).

30. Therefore the applicant meets cl 820.211(2) at the time of application and cl 820.221(3) at time of decision.

31. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

32. 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(2) of Schedule 2 to the Regulations; and

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

    Anne Grant
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

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