1836629 (Migration) - [2023] AATA 795

1836629 (Migration) [2023] AATA 795 (20 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1836629

MEMBER:Justine Clarke
DATE:20 March 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:
·cl 820.211(1) of Schedule 2 to the Regulations; and
·cl 820.221(3) of Schedule 2 to the Regulations.

Statement made on 20 March 2023 at 11:54am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased – genuine and continuing relationship before family violence – application for divorce – lengthy physical separation – extended cohabitation in Vietnam before visa application – joint travel and social activities – support from the sponsor’s family – abandonment by the sponsor – genuine spousal relationship at the time of application – family violence committed by the sponsor – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.15, 1.21-1.25
CASES
He v MIBP [2017] FCAFC 206
Li v Minister for Immigration [2007] FMCA 454
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
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

This is an application for review of a decision made on 3 December 2018 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 9 August 2016, the applicant, who is a national of Vietnam, applied for the visa based on her relationship with her sponsor, [Mr A]. At the time of application, the visa applicant was aged [age] years, and the sponsor was aged [age] years. At the time of this decision, the visa applicant is aged [age] years.
At the time that the applicant lodged the application for the visa, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Relevantly to this matter, the primary criteria include cl 820.211 and cl 820.221 which respectively require that, at the time of application and decision, the applicant is the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These circumstances include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl 820.211(8) or (9) and cl 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred.
The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate acknowledged that, on 30…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1836629 (Migration)

Details

AGLC: 1836629 (Migration) [2023] AATA 795
Case: [2023] AATA 795
Decision Date: 20 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision that she did not meet the criteria for the visa. The core of the dispute concerned whether the applicant and the sponsor were in a genuine and continuing spouse relationship at the time of the visa application, and whether the applicant had suffered family violence committed by the sponsor.

The legal issues before the Tribunal were whether the applicant met the requirements of clause 820.211(1) and (2) of Schedule 2 to the Migration Regulations 1994, specifically regarding being the spouse of an Australian citizen at the time of application. Additionally, the Tribunal had to determine if the applicant had suffered family violence committed by the sponsor, as defined by the Regulations, and if this violence occurred during the relationship.

The Tribunal reasoned that evidence of events subsequent to the visa application could be relevant to establishing the status of the relationship at the time of application. It found that the applicant met the criteria under clause 820.211(1)(a) and (b), indicating she was not the holder of a Subclass 771 (Transit) visa and was the spouse of the sponsor at the time of application. The Tribunal also considered the definition of "spouse" under section 5F of the Act, which requires a valid marriage, mutual commitment, a genuine and continuing relationship, and cohabitation. Furthermore, the Tribunal found that the applicant's statutory declaration met the requirements of regulation 1.25, establishing a non-judicially determined claim of family violence.

Consequently, the Tribunal remitted the application for reconsideration. It directed that the applicant be found to meet the criteria under clause 820.211(1) and clause 820.221(3) of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The primary criteria to be satisfied at the time of application are that the applicant is not the holder of a Subclass 771 (Transit) visa and that she meets one of the alternate requirements set out in cl 820.211(2), (5), (6), (7), (8) or (9): cl 820.211(1). The Tribunal has reviewed the applicant’s movement records which also detail her visa status at various times. The Tribunal is satisfied that, at the time of application on 9 August 2016, the applicant was not the holder of a Subclass 771 (Transit) visa. Therefore, the Tribunal finds that cl 820.211(1)(a) is met. The subclause relevant to the applicant’s circumstances is cl 820.211(2). The key issue for determination is whether, at the time of application, the applicant was the spouse of the sponsor. As has been explained, the delegate was not so satisfied. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. In making findings about the status of the parties’ relationship at the time of application, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 as well.TIME OF APPLICATION REQUIREMENTSWhether the parties were in a spouse or de facto relationship Clause 820.211(2)(a) requires that, at the time the visa application was made, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The applicant claims that, as at 9 August 2016, which is when she applied for the visa and up until the cessation of the relationship, she was the spouse of the sponsor who is an Australian citizen. The Department’s file contains a certified copy of the sponsor’s registered birth certificate and a copy of the bio-pages of the sponsor’s Australian passport. From the evidence before it, the Tribunal is satisfied that the sponsor is an Australian citizen by birth. ‘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 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 specific matter contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.Were the parties validly married?

Decision

Reasons for decision

The Tribunal finds that the applicant meets the time of application requirements in cl 820.211(2). As the applicant meets the requirements of cl 820.211(2), she also meets cl 820.211(1)(b). As both cl 820.211(1)(a) and (b) are met, cl 820.211(1) is met.TIME OF DECISION REQUIREMENTS Based on the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased.[9] [9] The applicant provided the Tribunal with a copy of the Divorce Order stating that the order took effect [in] January 2019. The next issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations. Relevant family violence is defined in reg 1.21. 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. 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). In the present case, the applicant is seeking to establish family violence based on a non-judicially determined claim of family violence.Has a claim of family violence been made under the regulations? Under reg 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 reg 1.24 is provided. In this case, the applicant is seeking to rely on evidence referred to in reg 1.24—namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116).Consideration of the applicant’s statutory declaration of 7 March 2023 A statutory declaration under reg 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: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3). The Tribunal finds that the applicant’s statutory declaration of 7 March 2023 meets the requirements of reg 1.25(1) and (2).Consideration of evidence specified in the applicable legislative instrument

Ratio Decidendi

Legal Principle Established

The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:·cl 820.211(1) of Schedule 2 to the Regulations; and·cl 820.221(3) of Schedule 2 to the Regulations.Justine ClarkeMemberATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 19941.21 InterpretationIn this Division:independent expert means a person who:(a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and(b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.non-judicially determined claim of family violence has the meaning given by subregulations 1.23(8) and (9).relevant family violence means conduct, whether actual or threatened, towards:(a)the alleged victim; or(b)a member of the family unit of the alleged victim; or(c)a member of the family unit of the alleged perpetrator; or(d)the property of the alleged victim; or(e)the property of a member of the family unit of the alleged victim; or(f)the property of a member of the family unit of the alleged perpetrator;that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.violence includes a threat of violence.…1.23 When is a person taken to have suffered or committed family violence?(1)For these Regulations, this regulation explains when:(a)a person (the alleged victim) is taken to have suffered family violence; and(b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.Circumstances in which family violence is suffered and committed — injunction under Family Law Act 1975(2)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.(3)For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.Circumstances in which family violence is suffered and committed — court order(4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:(a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and(b)[…] order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.(5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.Circumstances in which family violence is suffered and committed — conviction(6)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:(a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or(b)recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.(7)For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.Circumstances in which family violence is suffered and committed — non-judicially determined claim of family violence(8)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and(b)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.(9)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and(b)the alleged victim is:(i) a spouse or de facto partner of the alleged perpetrator; or(ii) a dependent child of:(A)the alleged perpetrator; or(B)the spouse or de facto partner of the alleged perpetrator; or(C)both the alleged perpetrator and his or her spouse or de facto partner; or(iii) a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and(c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:(i) the alleged victim has suffered relevant family violence; and(ii) the alleged perpetrator committed that relevant family violence.(10)If an application for a visa includes a non-judicially determined claim of family violence:(a)the Minister must consider whether the alleged victim has suffered relevant family violence; and(b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and(c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and(ii) the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.(11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:(a)an application for a visa includes a non-judicially determined claim of family violence; and(b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.(12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.(13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:(a)an application for a visa includes a non-judicially determined claim of family violence; and(b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.(14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.