1904564 (Migration)

[2023] AATA 3584

1904564 (Migration) [2023] AATA 3584 (6 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nigel James Dobbie, Legal Practitioner

CASE NUMBER:  1904564

MEMBER:Jennifer Cripps Watts

DATE:06/10/2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl 801.221 of Schedule 2 to the Regulations

Statement made on 6 October 2023 at 5:30pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – relationship ceased – family violence committed by the sponsor – family violence occurred during genuine relationship – non-judicially determined claim of family violence – psychologist and social worker statutory declarations – physical assault – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 801.221; rr 1.15, 1.22 – 1.25

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 (‘the delegate’) on 8 February 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 November 2013 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.  Among other things, the Regulations explicitly require the family violence, or part of it, to have occurred while the spouse or de facto relationship was still in existence.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801. 221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the spouse of the sponsoring partner prior to the relationship ceasing. On that basis, the delegate did not go on to consider the applicant’s claim, and the evidence had provided, of non-judicially determined family violence.

5. The applicant appeared before the Tribunal on 4 October 2023 by MS-Teams audio-visual to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

6. The applicant’s representative, Mr Dobbie, attended the hearing, also by video.

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 the whether the applicant was in a spouse relationship at the time the claimed family violence, or a part of it, occurred.

9. Before making findings as to whether the relevant family violence occurred, it seems prudent to make findings about whether evidence required for a claim of non-judicially determined family violence, with regard to the evidence the applicant has provided, is in accordance with reg 1.24 of the Regulations.

10. The Tribunal has considered information on the Department and Tribunal files, together with the oral evidence given at the hearing, and any other relevant information material to the substantive issue on review.

    Has a claim of family violence been made under the regulations?

11. 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.

12. 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 in LIN 23/026.

13. 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).

    Statutory declaration of the applicant

14. The applicant has provided a statutory declaration, on a Form 1040, signed and dated 11 April 2018, setting out the allegation of family violence, naming the sponsor as the person who committed the family and that the conduct was directed at the applicant.

    Statutory declarations by two types of evidence specified in LIN 23/026

15. The applicant has provided two statutory declarations to support his claim of non-judicially determined family violence, from:

    a.[Psychologist A], psychologist, signed and dated 13 April 2018; and

    b.[Social Worker A], signed and dated 27 March 2018.

16. Both reports are very thorough and detailed.  They have been carefully considered by the Tribunal with regard to the requirements as they are specified in LIN 23/026.  Two types of evidence must be provided, they cannot be from the same category.  Psychologist and social worker are two distinct categories in the instrument. 

17. The Tribunal is satisfied that [Psychologist A] and [Social Worker A], acting in their respective professional capacities, have each provided a statutory declaration in which they include that the applicant has made a claim of family violence; that in their professional opinion the claims of the applicant are consistent with them having been subject to family violence; and the alleged perpetrator is identified as the sponsor.

18. 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.

19. As already mentioned earlier, the Regulations explicitly require the family violence, or part of it, to have occurred while the spouse or de facto relationship was still in existence.  The relationship ceased in early 2017.  The Tribunal will now go on to consider whether the parties were in a married relationship at the relevant time, relating to the family violence claim.

    Whether the parties are in a spouse or de facto relationship

20. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application, and which was granted. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant at the time of application and when the subclass 820 visa was granted in November 2015.

21. ‘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 visa applicant’s and sponsor’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision.

22. Where the relationship has ceased because of relevant family violence, there is an exception to the requirement that the applicant continue to be in the relationship, provided the family violence or part of it occurred while the relationship existed; that is, before the relationship ceased.  Relevantly in this case, that is essentially prior to January 2017.

    Non-Disclosure Certificate (‘NDC’) issued under s 376 of the Act

23. There is an NDC on the Department file, which specifies folios containing an email dated December 2018, purportedly from the sponsor’s boyfriend.  Certain allegations are made about the genuineness or otherwise of the parties’ marriage; the writer also alleges that the applicant has a wife and child in Nepal.  The information was put to the applicant at the hearing, he elected to respond at the hearing.  The applicant denied he has a wife and child in Nepal and also denied that the marriage was not genuine.  The applicant was told at the hearing that the Tribunal would not be relying on the information because it was not considered to be reliable information; it is not possible to say who sent the email, or what motivated who sent the email to send it; and on the basis that the applicant had given sworn evidence what had the complexion of ‘adverse’ information was untrue.

    Are the parties validly married?

24. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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?

25. The applicant lodged the partner visa application that is the subject of this review on 1 November 2013; the subclass 820 partner visa was granted on 19 November 2014. 

26. The sponsor informed the Department that the relationship had ceased in January 2017 and she withdrew the sponsorship.  The subclass 801 permanent partner visa was refused because the delegate found that the applicant was not in a married relationship at the time of application for the subclass 801 visa; the applicant held the subclass 820 visa when he applied for the subclass 801 permanent visa in on 14 December 2015.

27. The applicant claims that the family violence committed against him by the sponsor started in 2012, and that in the 2012-2013 period when the parties cohabited in [Suburb 1], there were frequent episodes where the sponsor smashed things, and once threw a knife at him that hit him in the head.  The neighbours often called the police, responding to these incidents that were clearly loud enough for them to hear.  They moved to [Suburb 2] and the sponsor’s violence continued; the police were called twice. These matters are all detailed, with additional information, in the applicant’s statutory declaration, signed and dated 11 April 2018.  A copy is on the Department file.  The applicant also gave consistent oral evidence about the relationship and the sponsor’s violence towards him at the Tribunal hearing.

28. In a 2018 statutory declaration provided by [Psychologist A], psychologist, he includes that the applicant visited him for ‘several sessions of interview and assessment over a long-extended period … and was given a thorough and detailed series of interviews in which he was asked to describe the alleged incidents in detail a number of times’.  [Psychologist A] describes the applicant’s reciting of the incidents in detail as being ‘traumatic’ for him and expressed his view that the applicant’s demeanour throughout the interviews was ‘completely consistent with accurate, truthful retelling of genuine traumatic events from the past (by the applicant’s ‘then wife’)’.  [Psychologist A] refers to violence committed by the sponsor as early as 2010 and 2011 and includes that ‘a similar pattern’ continued when the parties moved to [Suburb 1] in 2012.  The knife throwing incident is referred to, among other things.  It is noted by [Psychologist A] that the parties were married in August 2012 and that the ‘occasional acts of violence and smashing of objects in the home’ and other violent behaviour continued through to when the applicant applied for the partner visa in November 2013.  He goes on to describe the sponsor’s violent incidents from the time the applicant applied for the partner visa in 2013 as continuing up until January 2017, when the applicant visited his family in Nepal. 

29. A relevant consideration material to whether the family violence or a part of it occurred during the relationship, is that [Psychologist A]’ account of events is consistent with the applicant’s written and oral evidence given at the Tribunal hearing.  Another statutory declaration was provided by the applicant, from [Social Worker A], who is an accredited mental health social worker, signed and dated 27 March 2018.  The Tribunal has thoroughly considered the information in [Social Worker A’s] statutory declaration and is satisfied that it is generally consistent with what [Psychologist A] referred to in his statutory declaration.  On that basis, the Tribunal is satisfied that the incidents of family violence committed by the sponsor against the applicant commenced before the parties were married, continued after they were married and while they were in a married relationship, and that at least part of the family violence occurred during the married relationship when the applicant held a subclass 820 visa which was granted on the basis of his married relationship with the sponsor.

30. These two professionals, [Psychologist A] and [Social Worker A], refer to the applicant and sponsor in terms where they described a marriage that was essentially troubled and dysfunctional, but neither expresses a view, or implies, that the applicant and sponsor were not in a relationship.

31. Both [Psychologist A] and [Social Worker A] refer to incidents of family violence committed by the sponsor against the applicant that occurred within the period of the married relationship when the applicant held a subclass 820 partner visa.  The application for the subclass 820 visa was made in November 2013, it was granted in November 2015 and the relationship ceased in January 2017.  These dates are not in dispute. 

32. The Tribunal has already made findings that the applicant’s evidence in support of his claim of family violence satisfies the requirements in the Regulations relating to non-judicially determined family violence.  The Tribunal must consider whether the family violence, or part of it, occurred during the married relationship, for the purpose of deciding whether the family violence is relevant family violence.

33. The Tribunal has had regard to and considered the nature of the parties’ finances and their household, their social representation as a couple to friends and family and the commitment they demonstrated to the relationship and is satisfied that, even though the relationship was volatile, the relationship was genuine and that they lived in the manner of a married couple.

34. The Tribunal is satisfied, on the basis the applicant was granted and held the subclass 820 visa, that he and the sponsor have a mutual commitment to a shared life to the exclusion of all others; the relationship was genuine and continuing; and that they lived together or not separately and apart on a permanent basis when the visa was granted in November 2015.

    Has the applicant suffered family violence?

35. Having considered all of the evidence before it, for the reasons given earlier in this decision, the Tribunal is satisfied, for the purposes of reg 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: reg 1.22.

36. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for reg 1.22.

37. The Tribunal is satisfied that the applicant met the criteria for, was granted and held, a subclass 820 visa; and that the applicant would meet the requirements of cl 801.221(2)(b), except that the relationship between the applicant and the sponsoring partner has ceased and the applicant has suffered family violence committed by the sponsoring partner: cl 801.221(6), the family violence exception.

38. Given these findings the Tribunal satisfied that the requirements of s 5F(2) are met at the time of this decision. Therefore, the applicant meets cl 801.221 of Schedule 2 to the Regulations.

39. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

    DECISION

40. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl 801.221 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    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).