1902809 (Migration)

[2019] AATA 4648

1902809 (Migration) [2019] AATA 4648 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1902809

MEMBER:Ann Duffield

DATE:21 June 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 21 June 2019 at 12:30pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – sponsorship withdrawn – divorced – sponsorship withdrawn several times – family violence claims – family violence not established – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 801.221, rr 1.21, 1.23, 1.24

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 Immigration on 18 January 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 August 2014 on the basis of her relationship with her sponsor. At that time, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 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.801.221 which requires 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.801.221(6)(b), (c)(i). The applicant claims this occurred in this case.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.801.221 because the sponsor withdrew his sponsorship and the parties are divorced. The applicant made claims about a physical alteration and what could be construed as emotional and financial abuse in a statement dated 4 December 2016, but she did not at the time make a formal claim of family violence against the sponsor.

5. The applicant appeared before the Tribunal on 21 June 2019 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

7. The applicant provided the tribunal with a copy of the delegate’s decision along with her application for review.

8. The applicant is a citizen of Thailand born on [date].

9. The applicant was granted a subclass 820 visa on the basis of her spousal relationship with an Australian citizen, [name deleted] on 23 December 2015.

10. On 3 November 2016 the Department received information that her relationship with her sponsor had broken down. On 5 December 2016 the applicant and her sponsor responded to the Department stating that they had reconciled and wished to proceed with their application.

11. On 4 December the applicant wrote a four page statement to the delegate claiming that the sponsor had she had a physical altercation around October 2016 and that she had suffered emotionally and psychologically during their relationship. She did not make a formal claim of family violence at that time.

12. The sponsor contacted the Department again on 3 February 2017 requesting that the partner application be placed on hold due to pending 445 applications for her daughters and also that she wanted to include her daughters in her partner application.

13. There was further communication between the applicant and the Department and in March 2017 both her daughters were granted TK445 visas.

14. On 6 April 2017 her sponsor contacted the Department advising that their relationship had broken down. On 26 May 2017 her sponsor wrote to the Department again requesting that his sponsorship be reinstated. On 27 October 2017 her sponsor wrote to the Department advising that their relationship had ceased permanently.

15. On 14 December 2017 the applicant wrote to the Department stating that it was a big shock to her that her husband withdrew his sponsorship.

16. On 10 January 2019 the applicant’s sponsor provided the Department with a final Divorce Order dated [April] 2018. Despite numerous requests, by the delegate for the applicant to provide information, the delegate received no further information from the applicant.

17. On 18 January 2019 the delegate refused the application.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant remains in a spousal relationship with the sponsoring partner and if not whether that relationship ended because she had been the victim of domestic violence.

19. The sponsor withdrew his sponsorship several times and reinstated it several times. The last time it was withdrawn was on 27 October 2017. The parties have subsequently divorced in April 2018 and a copy of the divorce certificate is on the Tribunal’s file at folio 170. The applicant made no subsequent claims at the Tribunal hearing that she and the sponsor were remarried or living together in a spousal relationship.

20. The applicant therefore does not meet cl.801.221.

21. The Tribunal received the following documents from the applicant prior to the scheduled hearing:

    a.A statutory declaration dated 23 January 2017 claiming that she and the sponsor reconciled on 5 December 2016;

    b.A statutory declaration from the sponsor dated 23 January 2017 claiming that he and the applicant had reconciled on 5 December 2016;

    c.Copy of the applicant’s divorce certificate dated [April] 2018 (Folio 170 of the Tribunal’s file);

    d.A statement from the applicant setting out her relationship with the sponsor, including general statements of physical and emotional abuse dated 4 December 2016;

    e.Copy of a motor vehicle insurance policy dated 2 May 2016;

    f.Some photographs of the applicant and the sponsor;

    g.Some untranslated documents;

    h.Some translated documents in relation to house registration;

    i.A statutory declaration from a friend of the applicant dated 7 March 2017;

    j.A statutory declaration from a friend of the applicant dated 5 March 2017;

    k.A statutory declaration from a friend of the applicant dated 24 December 2013;

    l.A statement from [an] American citizen living in Thailand and ex-boyfriend of the applicant claiming that the applicant had suffered emotionally and psychologically during her relationship with the sponsor who had also stolen all her money. This is an unsworn statement and is dated 20 June 2019;

    m.A copy of the sponsor’s Will dated 25 July 2014;

    n.A copy of the applicant’s Will dated 25 July 2014;

    o.Copies of property deeds in the applicant’s name in Thai along with English translations; and

    p.A Form 1410 signed by the applicant on 14 June 2019 claiming she was a victim of family violence.

22. Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in r.1.21.  The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).

23. The applicant provided the Tribunal with a Form 1410 statutory declaration in relation to a claim of family violence against the sponsor dated 14 June 2019. In that document she makes no new claims, provides no clear dates of incidents and refers to her statement of 4 December 2016 which she attached to the claim. In that statement it can be construed that she claims to have suffered during a physical altercation around October 2016 and that her husband stole from her. She has not provided relevant dates or sufficient detail of any other incidents. In relation to the alleged theft of assets or money, there is no evidence that the applicant has made any police report in relation to that matter or any other matter.

24. The Tribunal questioned the applicant about this during the hearing and she was unable to provide further clarification about dates. She confirmed that her claims of violence were emotional, financial and psychological in nature and that she had tried to kill herself.

25. The applicant provided to the Tribunal, at the hearing, some hospital discharge records in relation to her ingestion of some [details deleted] twice in a 24 hour period [in] January 2017. The applicant was unable to tell the Tribunal what the documents referred to so the Tribunal read them to her with the assistance of the interpreter during the hearing.

26. The discharge documentation does not indicate that the applicant made any claims of family or domestic violence. She stated to the Triage staff that she had ongoing disputes with her partner who wanted a divorce and that she was stressed. The applicant denied that she consumed [details deleted] or feeling unwell or in pain.

27. The Tribunal put to the applicant that it does not appear in the hospital records that she made any claims of domestic or family violence, or that she sought assistance from any hospital or medical staff about any claims or fear she had in relation to family or domestic violence.

28. The Tribunal put to her the full list of acceptable evidence that she could provide in order to support a non-judicial claim of domestic violence and put to her that the hospital records she had provided do not meet that threshold. The Tribunal also put to her that a non-sworn statement by her American citizen friend living in Thailand also did not meet the criteria.

29. The applicant told the Tribunal that she was waiting for records from a psychologist that she had been seeing, however after a discussion about this alleged report it transpires that the applicant was not seeing a psychologist but a GP who had prescribed her sleeping tablets.

30. The applicant has not provided any relevant evidence to support either a non-judicial or judicial claim of family violence against the sponsor. Her sworn statement is insufficient and relies on undated and unspecific incidences that she alleges occurred. Even if it met the criteria, in itself it is insufficient to support a non-judicial claim. Another statement by an American friend resident in Thailand also does not meet the statutory requirements.

31. The applicant has provided no other evidence to support her claims.

32. Therefore, the evidence presented does not meet the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23.

33. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.801.221(6)(b) and (c) for the grant of the visa.

34. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    CONCLUSION

35. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

36. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Ann Duffield
    Senior 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).