1902818 (Migration)

[2023] AATA 778

1902818 (Migration) [2023] AATA 778 (21 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE: Mr Thang Gia Do(MARN: 1687850)

CASE NUMBER:  1902818

MEMBER:Cheryl Cartwright

DATE:21 March 2023

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

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

Statement made on 21 March 2023 at 1:55pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – genuine and continuing relationship before family violence – joint major asset and liabilities – interim intervention order – family violence during the spousal relationship – decision under review remitted      

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, 820.321; rr 1.15, 1.21, 1.23, 1.25

CASES

He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

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 28 September 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. In a document dated 30 May 2018, the applicant advised the Department that the relationship with her sponsor had ceased due to family violence.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2) because there was insufficient evidence to demonstrate that the applicant and sponsor were in a genuine spousal relationship. The delegate did not consider the claim of family violence against cl 820.221(3)(b)(i) because the delegated found that the applicant did not satisfy cl 820.221(2).

5. The applicant appeared before the Tribunal on 8 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Sister A], the sister of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether, at the time of application on 15 August 2017, the applicant and the sponsor were spouses for the purposes of the Act.

9. As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

   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. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

10. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

    Background

11. The parties met via telephone in 2014 when the applicant was living in Vietnam and the sponsor was living in the home of the applicant’s sister in Australia. The parties were introduced via telephone by the applicant’s sister, the witness at the Tribunal hearing.

12. The sponsor had told the applicant’s sister that he wanted to meet a Vietnamese woman and to be married. He travelled to Vietnam on holiday early in 2015 and met the applicant. On his second visit in 2015 the parties decided that they would get married and began living together.

13. The applicant travelled to Australian in 2016 and the parties were married [in] August 2016. A copy of the marriage certificate is on the Department’s file.

14. On 30 May 2018, before the delegate’s decision on 23 January 2019, the applicant advised the Department that the parties had separated due to family violence.

15. The applicant provided a copy of an interim intervention order dated [in] April 2018 by [Court 1] that stated the applicant was a protected person and that the sponsor should not contact or communicate with the applicant, approach or remain within five metres of the applicant or go to or remain within 200 metres of the applicant’s residence at [Address 1].

16. The applicant also provided a psychologist report dated 7 November 2018 from [Doctor A] of the [Clinic 1] in which [Doctor A] stated that she had assessed the applicant as having suffered clinical anxiety and depression precipitated by family violence perpetrated by the sponsor.

17. The applicant told the hearing that her daughter, [Daughter A], had been living with the applicant during the time of the parties’ spousal relationship.

    Whether the parties are in a spouse or de facto relationship

18. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, 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. A copy of the sponsor’s passport is on the Department’s file.

19. ‘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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

20. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in [Suburb 1], Victoria, [in] August 2016. A copy of the marriage certificate is on the Department’s file.

21. On the evidence, the parties were 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?

22. Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other.

23. In considering these issues, the Tribunal has had regard to all the documents on the Department’s file and the Tribunal’s file and the evidence provided at the Tribunal hearing.

    The financial aspects of the relationship

24. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

25. In documentation provided to the Department and to the Tribunal and in oral evidence provided at the Tribunal hearing on 8 February 2023, the applicant stated that the sponsor had purchased a home for the parties at [Address 1]. A letter dated 23 January 2023 from [a named law firm], on behalf of the sponsor, stated that the applicant continued to contribute financially to payment of the mortgage over the property, that is held in the sponsor’s name. The letter stated that the sponsor had received a loan of $[large amount] from the applicant’s daughter to help pay for the parties’ home.

26. The letter from the sponsor’s lawyer also stated that the sponsor had asked the applicant to decide whether to refinance the mortgage in order to transfer the ownership of the property to her name, or to sell the property in order to finalise the financial arrangements between the parties with regard to the mortgage on the parties’ home.

27. The Tribunal gives great weight to this documentation as evidence of the parties having a joint major asset, the home, and joint liabilities, the mortgage in the sponsor’s name to which the applicant makes financial contributions. The Tribunal notes, as mentioned above, that the applicant’s daughter had provided a loan to the sponsor to assist with payment for the property.

28. With regard to the pooling of financial resources, the applicant told the Tribunal that the parties had briefly held a joint bank account, but the sponsor did not allow her to use the card associated with the account. She mainly used cash for purchases.

29. The applicant told the Tribunal that the parties did household shopping together, but occasionally she would attend the local market on her own. The applicant told the Tribunal that the sponsor made all decisions with regard to household purchases. The witness, [Sister A], the sister of the applicant, also told the hearing that the sponsor made all the decisions for the household. The Tribunal gives some weight to these statements as evidence that the parties, to some extent, pooled financial resources.

30. The Tribunal considers that, on the evidence, the parties at the time of application had jointly invested in a home and were jointly committed to a mortgage on the home. The applicant was financially committed to the home as she made financial contributions to it and her daughter had provided a loan to assist with the purchase of the home. The parties pooled financial resources for household items.

    Nature of the household

31. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

32. There is no evidence before the Tribunal that the parties have any children together. The visa applicant has a daughter from a previous relationship and she told the Tribunal that her daughter had lived with the parties. The applicant’s daughter was born on [date] and was [age] years old when the parties married. There is no evidence before the Tribunal that the sponsor contributed to the care of the applicant’s daughter but there is evidence that the applicant’s daughter provided a loan to the sponsor in order to assist with finance for the parties’ home.

33. The applicant provided no evidence regarding household duties of the parties. The applicant told the Tribunal hearing that all matters in relation to the household were decided by the sponsor. The Tribunal gives some weight to this evidence in regard to household duties.

34. The applicant provided copies of utilities invoices and mail addressed to both parties at their first address at [Address 2], and at the second address [Address 1], where the applicant continues to reside. The Tribunal gives great weight to this correspondence as evidence of the parties residing at the same address and jointly making financial contributions to the expenses at [Address 1]. The Tribunal considers that, on balance, the evidence demonstrates that the parties shared a home while in a genuine spousal relationship.

    Social aspects of the relationship

35. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

36. The Tribunal notes that the applicant told the Department on 30 May 2018 that the parties had separated. On the evidence, the relationship lasted less than two years.

37. The applicant told the Tribunal hearing that the parties rarely socialised and had few friends and she would only go out “when he came with me”. She told the Tribunal hearing, “He didn’t want me to meet anybody”, but she occasionally met with her sister, the witness at the hearing.

38. The applicant’s sister told the hearing that she would occasionally go shopping with the parties and they would sometimes go out to dinner.

39. The Tribunal gives little weight to the evidence of social activities of the parties and considers there is little evidence that the parties presented themselves to other people, other than the applicant’s sister and daughter, as being married.

    The nature of the persons’ commitment to each other

40. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

41. The parties met via telephone in 2014 when they were introduced by the applicant’s sister. The applicant’s sister told the Tribunal that the sponsor had told her he wanted to meet a Vietnamese woman and to be married. The parties met in person in 2015 when the sponsor visited Vietnam and they decided to get married. They married in 2016 and separated in 2018.

42. The applicant had been married in Vietnam twice before her marriage to the sponsor. [Detail deleted]. The applicant told the Tribunal hearing that, when she decided to agree to marry the sponsor, she found him to be “a kind man” and he had treated her better than had her two previous husbands.

43. No evidence has been provided to the Tribunal of emotional support or companionship shared between the parties. The Tribunal gives some weight to this lack of evidence.  

44. The only evidence of the parties’ commitment to the long-term relationship is the commitment to a mortgage in the sponsor’s name for a home for the parties. The Tribunal gives some weight to this evidence as a demonstration that the parties had, at the beginning of the relationship, considered the relationship to be long term.

    Has a claim of family violence been made?

45. 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. 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).

46. The applicant has provided a copy of an interim intervention order dated [in] April 2018 by [Court 1] that stated the applicant was a protected person and that the sponsor should not contact or communicate with the applicant, approach or remain within five metres of the applicant or go to or remain within 200 metres of the applicant’s residence at [Address 1].

47. On 2 March 2023, the Tribunal received a copy of an intervention order dated [in] November 2018 by [Court 1] that stated the applicant was a protected person and that the sponsor should not contact or communicate with the applicant, approach or remain within five metres of the applicant or go to or remain within 200 metres of the applicant’s residence at [Address 1].

48. The intervention order dated [in] November 2018 stated that the sponsor could only communicate with the applicant through a lawyer in regard to the mortgage for the property at [Address 1]. The Tribunal gives great weight to this intervention order.

49. On 23 February, the Tribunal received a statement from the applicant’s daughter, [Daughter A]. [Daughter A] stated that she had lived with the applicant and the sponsor and that her mother had been happy early in the marriage. [Daughter A] stated that, after the parties purchased the house at [Address 1], the sponsor had begun “acting aggressively” and had been “verbally and physically abusive” to the applicant. She stated she had “witnessed him (the sponsor) hitting my mother several times”. [Daughter A] stated she was afraid to call the police but did so once [date provided]. The sponsor’s response at that time had been to demand she hang up the telephone or “he would break my mother’s neck”. [Daughter A] stated that she returned to Vietnam in [2017] for [time period] to avoid the violence.

50. [Daughter A], the applicant’s daughter, provided the Tribunal with a copy of an intervention order dated [in] May 2018 by [Court 1] that stated the applicant’s daughter was a protected person the sponsor should not communicate with [Daughter A], approach or remain within five metres of her or go to or remain with 200 metres of where [Daughter A] lives.

51. The Tribunal gives great weight to the statement by [Daughter A], the applicant’s daughter, and to the intervention order that she provided as evidence of family violence perpetrated by the sponsor.

52. The applicant provided a psychologist report dated 7 November 2018 from [Doctor A] of the [Clinic 1] in which [Doctor A] stated that she had assessed the applicant as having suffered clinical anxiety and depression precipitated by family violence perpetrated by the sponsor.

53. In a statement dated 16 April 2018, the applicant stated that the sponsor had been a caring person until early 2017 which was the time they had purchased the house at [Address 1]. The house was purchased in the sponsor’s name, but the applicant stated that she contributed financially to the purchase. The applicant’s financial contributions are confirmed in the letter from the sponsor’s lawyer dated 11 January 2023, as is the financial contribution made by the applicant’s daughter.

54. In her 16 April 2018 statement, the applicant stated that the sponsor had reacted with “anger and abuse” in response to the costs of maintenance of the house. The applicant stated that the sponsor had committed physical abuse towards the applicant and her daughter, had demanded money from them and had threatened to send them back to Vietnam. The applicant stated that she had “lived in fear” of the sponsor.

55. The applicant’s sister told the hearing that she saw a change in the attitude of the sponsor towards the applicant in early 2017. She noticed that he had become short-tempered and would abuse the applicant. She stated that she lived nearby and had seen her sister crying after suffering the abuse. The Tribunal gives some weight to this evidence of family violence.

1. In the decision dated 23 January 2019, the delegate did not assess the claims of family violence because the delegate determined that the parties were not in a spousal or de facto relationship at the time the family violence was deemed to have occurred.

2. The Tribunal gives great weight to the intervention order dated [in] November 2018 and to the evidence provided to the hearing on 8 February 2023 by the applicant’s sister, [Sister A], as evidence of family violence.

3. The Tribunal is of the view that the parties were in a genuine spousal relationship that lasted less than two years and that family violence occurred during the time of this relationship. Accordingly, the Tribunal finds that the requirements of r 1.25 are met with respect to the claim of family violence.

   Secondary Applicant

4. In the Department’s decision dated 23 January 2019 the delegate found that, as the primary applicant did not meet the requirements of cl 820.211(2), the secondary applicant did not meet cl 820.321 by virtue of being a dependant or a member of the family unit of the primary applicant.

5. [Details deleted]. The applicant’s daughter is no longer a secondary applicant.

   CONCLUSION

6. On balance of the evidence provided to the Department and to the Tribunal, the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made. Therefore, the applicant meets cl 820.211(2).

7. The Tribunal notes that the relationship lasted less than two years and also notes the statements provided in regard to family violence that is claimed to have occurred during the spousal relationship.

8. On the matter of family violence, the Tribunal notes that the delegate did not consider the claims of family violence because the delegate had found that a genuine spousal relationship had not existed at the time of application.

9. The Tribunal has found that, at the time of application, the parties were in a genuine spousal relationship, the Tribunal also finds that family violence occurred during the time when this spousal relationship was in place.

10. Having considered all of the evidence before it, the Tribunal is satisfied that, for the purposes of r 1.23, the applicant has suffered family violence committed by the sponsor that occurred while the applicant and the sponsor were in a genuine spousal relationship. The applicant therefore meets cl 820.221(3)(b)(i).

11. Given the findings above, the appropriate course is to remit the application for the visa.

    DECISION

12. 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

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

    Cheryl Cartwright
    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).