1901559 (Migration)

1901559 (Migration) [2023] AATA 3243 (11 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Hunter Te (MARN: 1804811)
CASE NUMBER:  1901559
MEMBER:Moira Brophy
DATE:11 August 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 820.221(3) of Schedule 2 to the Regulations

Statement made on 11 August 2023 at 10:14am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine relationship at time of visa application – validly married – joint finances and social activities, and support from sponsor’s parents – lack of finances, applicant’s health and sponsor’s imprisonment – relationship ceased and non-judicially determined claim of family violence – statutory declaration, supporting reports and statements and credible oral evidence – opinion of independent expert – physical, verbal, emotional, sexual and financial abuse – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25(2), Schedule 2, cls 820.211, 820.221(3)(a), (b)(i)
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 by a delegate of the Minister for Home Affairs on 22 January 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 June 2016 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 (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. 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 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: cls 820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.211 and cl 820.221 and because the delegate was not satisfied the parties were in a genuine and continuing relationship both at the time of application and time of decision.
The applicant appeared before the Tribunal on 6 June 2023 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Vietnamese and English language.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant is a [Age]-year-old national of Vietnam. She has declared no previous relationships. The applicant arrived in Australia [in] April 2014 on a Student visa. The applicant’s parents, her step-father and one step-brother reside in Vietnam.
The sponsor is a [Age]-year-old Australian citizen. He has declared no previous relationships. He came to Australia with his parents and siblings from Vietnam [in] March 1990.
The parties stated that they met on 5 May 2014 at [Suburb 1]. They committed to a shared life to the exclusion of all others on 18 April 2016. They married [in] May 2016.
The applicant’s representative advised the Tribunal on 6 February 2023 that the relationship between the applicant and her sponsor had broken down due to domestic violence.
Prior to hearing the applicant provided the following:
·Email correspondence from the representative to the Tribunal and dated 6 February 2023;
·Email correspondence from the representative to the Tribunal and dated 24 February 2023;
·Translated Vietnamese medical documents pertaining to the applicant’s medical treatment in Vietnam for fertility in February 2023;
·Form 1410 Statutory declaration for family violence claim completed by the applicant and dated 30 May 2023;
·Statement regarding family violence made by the applicant and dated 30 May 2023;
·Form 1410 Statutory declaration for family violence claim made by [Mr A], psychologist, and dated 1 June 2023;
·Psychologist Report prepared by [Mr A] of [Psychological Services], and dated 31 May 2023;
·Statutory declaration made by [Ms B], Social Worker, and dated 31 May 2023;
·Relationship statement made by the applicant and dated 2 June 2023;
·Statutory declaration made by [C], a friend of the applicant, and dated 1 June 2023;
·Statutory declaration made by [D], a friend of the applicant, and dated 1 June 2023;
·Statutory declaration made by [E], a friend of the applicant, and dated 1 June 2023; and
·Written submission made by the representative and dated 4 June 2023.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence.
In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided by the applicant at the hearing. The Tribunal has also taken into account the documents received prior to the hearing.
The applicant gave her oral evidence in a clear, open and forthright manner. She was able to spontaneously answer the Tribunal’s questions and her evidence was broadly consistent with the documentation on file.
Was there a spousal relationship?
The Tribunal finds that the parties met in Sydney in May 2014 through a mutual friend. They commenced dating and their relationship developed. The applicant was a student and working part time in a [shop 1] and the sponsor was working in a [shop 2]. The sponsor proposed in February 2015.
Initially they lived together in a rented property at [Suburb 2]. After their wedding in Australia in May 2016 they saved sufficient money to travel to Vietnam and they had a wedding there [in] October 2016 with all the applicant’s family present.
The couple did have a joint bank account which they were both able to access. The sponsor was generally paid in cash when he worked. His work was not constant which was a stress on the applicant. The applicant was paid from her work as [an Occupation] into the joint account and the utility bills were paid from that account.
The Tribunal is satisfied that the parties celebrated birthdays and other significant life events with the sponsor’s family in Australia. Photographs taken during the period of the relationship show the couple socialising with others, including at their wedding. The family of the sponsor were supportive of the applicant and she spent a lot of time with them.
During the time they were married the sponsor spent a lot of time and money playing video games. In March 2017 he was arrested. Neither the applicant nor his parents were aware of the activities he was involved in at times when they had thought he was at work. He was sentenced to two months jail and placed under supervision for three years. The sponsor’s parents asked the applicant to move in with them while the sponsor was in jail.
The applicant and the sponsor had wanted to start a family but the applicant suffered a number of debilitating health issues. She suffered a miscarriage and had to have emergency surgery at a private hospital which was an added expense. Further complications followed and she had difficulty becoming pregnant.
From the time the sponsor was incarcerated he did not contribute financially to the household. The stress of the lack of finances and the health problems faced by the applicant were very difficult for both parties.
On the basis of the evidence, the Tribunal is satisfied the parties were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.
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: regs 1.23(3), (5), (7), (12), (14).
In the present case, the applicant is seeking to 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?
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.
The applicant in this case 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 LIN 23/026).
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 applicant submitted a statutory declaration dated 30 May 2023 to the Tribunal setting out the alleged family violence perpetrated by the sponsor. She states that the sponsor often verbally and emotionally abused her, there were instances of physical violence, financial exploitation and sexual coercion and threats and intimidation. Those behaviours impacted on her emotionally and psychologically, they had a physical impact, a financial impact, and she was socially isolated which impacted on her self-identity and trust in others.
A confidential psychological report dated 31 May 2023 prepared by [Mr A], registered psychologist with [Psychological Services] stated that he had seen the applicant on 1 May 2023, 15 May 2023 and 29 May 2023 and that she presented as exhausted at all times, with sleep difficulties and difficulty in concentrating and remembering. She reported she had low appetite, unstable mood and outbursts of anger for no good reason, she felt low and had a lack of motivation and energy, no interests in activities she used to enjoy and she struggled to make decisions. Based on his assessment, he found the applicant to meet the criteria for major depressive disorder with PTSD symptoms and that the onset of the conditions was associated with the verbal, emotional and sexual abuse in her marriage.
A statutory declaration dated 31 May 2023 prepared by [Ms B], social worker was provided. In that declaration, she stated the applicant had been counselled by her in her role as a social worker on 15 May 2023. She said the applicant had reported significant abuses by the sponsor which included financial, sexual, psychological, physical and social abuse. [Ms B] was of the opinion the applicant was very tired and depressed and had lost her appetite and memory and that these symptoms were reflective of the family violence she had suffered from the sponsor. She believed her to be a genuine victim of family violence by the sponsor during the time of their marriage.
Documents meeting the requirements of reg 1.25(2) of the Regulations have therefore been provided.
Therefore, the evidence presented meets the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23.
Has the applicant suffered family violence?
Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of reg 1.23 that the applicant had suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert. On 21 July 2023, the independent expert provided an opinion that the applicant had suffered relevant family violence.
The independent expert considered the applicant had suffered family violence because of both actual and threatened physical aggression and violence, verbal and emotional abuse and controlling behaviour, sexually coercive behaviour and financial abuse. The independent expert concluded that the applicant met the criteria for relevant family violence according to the Regulations and because of the violence allegedly perpetuated by her sponsor that caused the applicant to become reasonably fearful for or to be reasonably apprehensive about her own well-being or safety.
The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under reg 1.23, the Tribunal is required to take as correct an independent expert’s opinion, properly made.
Where the independent expert’s opinion is that a person has suffered relevant family violence, at least part of the violence that led to that opinion must have occurred while the married or de facto relationship existed. The Tribunal is satisfied the family violence as found by the independent expert occurred during the period between September 2016 and December 2021, that is during the period the relationship was on foot.
Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for reg 1.22.
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
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 820.221(3) of Schedule 2 to the Regulations.
Moira Brophy
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
1.21 Interpretation
In this Division:
independent expert means a person who:
(a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and
(b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.
non-judicially determined claim of family violence has the meaning given by subregulations 1.23(8) and (9).
relevant family violence means conduct, whether actual or threatened, towards:
(a)the alleged victim; or
(b)a member of the family unit of the alleged victim; or
(c)a member of the family unit of the alleged perpetrator; or
(d)the property of the alleged victim; or
(e)the property of a member of the family unit of the alleged victim; or
(f)the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.
violence includes a threat of violence.
…
1.23     When is a person taken to have suffered or committed family violence?
(1)For these Regulations, this regulation explains when:
(a)a person (the alleged victim) is taken to have suffered family violence; and
(b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.
Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.
Circumstances in which family violence is suffered and committed — injunction under Family Law Act 1975
(2)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.
(3)For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.
Circumstances in which family violence is suffered and committed — court order
(4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and
(b)[…] order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.
(5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Circumstances in which family violence is suffered and committed — conviction
(6)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:
(a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or
(b)recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.
(7)For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Circumstances in which family violence is suffered and committed — non-judicially determined claim of family violence
(8)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.
(9)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b)the alleged victim is:
(i)       a spouse or de facto partner of the alleged perpetrator; or
(ii)      a dependent child of:
(A)the alleged perpetrator; or
(B)the spouse or de facto partner of the alleged perpetrator; or
(C)both the alleged perpetrator and his or her spouse or de facto partner; or
(iii)     a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and
(c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i)       the alleged victim has suffered relevant family violence; and
(ii)      the alleged perpetrator committed that relevant family violence.
(10)If an application for a visa includes a non-judicially determined claim of family violence:
(a)the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i)       the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and
(ii)      the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
(11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non-judicially determined claim of family violence; and
(b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.
(12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
(13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non-judicially determined claim of family violence; and
(b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
(14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

[2023] AATA 3243

11 August 2023

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Immigration

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Judicial Review

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