1909414 (Migration)

[2024] AATA 815

1909414 (Migration) [2024] AATA 815 (8 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Chit Thian Chua (MARN: 0212288)

CASE NUMBER:  1909414

MEMBER:Justine Clarke

DATE OF ORAL DECISION:  8 February 2024

DATE OF WRITTEN STATEMENT:         14 February 2024

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 14 February 2024 at 11:25am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship before relationship ceased – joint bank accounts – applicant took over financial responsibility – housework shared according to capacity – joint visits to China – social recognition – assisting with the sponsor’s care needs – non-judicially determined claim of family violence – 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
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

1. This is an application for review of a decision made on 27 March 2019 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. On 16 July 2015, the applicant applied for the visa based on her relationship with her sponsor, [Mr A]. At the time of the application for the visa, the applicant was aged [age] years and the sponsor was aged [age] years. At the time of this decision, the applicant is aged [age] years.  

3. At the time of application, 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 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 in this case.

4. The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate assessed the application pursuant to cl 820.211(2), finding it to be the only subclause relevant to the applicant’s circumstances, and found that the information and evidence, submitted in support of the application, was not sufficient to demonstrate that, at the time of application on 16 July 2015, the applicant satisfied the definition of spouse under s 5F of the Act. The delegate made no findings in respect of the time of decision criterion in cl 820.221(1).

5. The delegate expressed a number of concerns about the evidence that had been submitted, including the following.

   In the provided relationship statements, you and your sponsor state that you declared your feelings for each other and commenced a relationship on 1 June 2014 and that you moved to Australia to live permanently with your sponsor [later in] June 2014. In your Visitor (subclass 600) visa lodged on 11 June 2016, you presented yourself to the Department as a married woman wanting to travel to Australia for two weeks in order to discuss a business arrangement with your sponsor. A Departmental officer called your sponsor who confirmed that you were travelling to Australia to discuss business opportunities. I find that both you and your sponsor have provided inconsistent information to the Department and I find that this detrimentally affects your credibility.

6. On 16 April 2019, the applicant applied to the Tribunal for review of the delegate’s refusal decision. The applicant was represented in relation to the review.

7. On 8 December 2023, the Tribunal invited the applicant to attend a hearing on 19 January 2024. However, on 15 January 2024, the scheduled hearing had to be cancelled due to the Member being unwell. Later, the hearing was rescheduled to take place on 8 February 2024.

8. The Tribunal gave its decision on the review at the conclusion of the hearing held on 8 February 2024. The following are the reasons for that decision.

9. On 8 February 2024, the applicant appeared, in person, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence, in person, from [Friend A] (the applicant’s friend and employer as she works as his support worker; he had earlier made a statutory declaration on 24 November 2021) and by telephone from [Son A] (the applicant’s son). The representative also attended the hearing in person.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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).

12. The Tribunal has reviewed the applicant’s movement records, a copy of which is on the Tribunal’s file, which also detail her visa status at various times. The Tribunal is satisfied that, at the time of application on 16 July 2015, the applicant was not the holder of a Subclass 771 (Transit) visa. Therefore, the Tribunal finds that cl 820.211(1)(a) is met.

13. 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.

14. Evidence of events after 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 after the date of the visa application.

15. 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 REQUIREMENTS

    Whether the parties were in a spouse or de facto relationship  

16. 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.

17. The applicant claims that, as at 16 July 2015, 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 permanent resident. The Department’s file contains a copy of the bio-pages of the sponsor’s British passport as well as certified copies of various documents of the sponsor, including his pensioner concession card issued by the Australian Government Department of Human Services. The Tribunal has also reviewed the copy of the sponsor’s movement records which are on the Tribunal’s file and which evidence that he holds a Subclass 155 Resident Return visa. From the evidence before it, the Tribunal is satisfied that the sponsor is an Australian permanent resident.

18. ‘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).

19. 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?  

20. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. [In] June 2015, the applicant and the sponsor married each other in [Victoria]. Copies of their registered marriage certificate and the ‘decorative’ Certificate of Marriage are on the Department’s file. Based on this evidence, the Tribunal finds that, at the time of application on 16 July 2015, the applicant and the sponsor were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Were the other requirements for a spouse relationship met? 

21. In order to make the requisite findings about the reg 1.15(3) matters and the s 5F(2)(b)–(d) requirements, the Tribunal has had regard to all the documents on the Department’s file and on the Tribunal’s file and to the oral evidence given at the hearing. The Tribunal notes that it did not ask the applicant to give oral evidence about every reg 1.15(3) matter as it was mindful that her statutory declaration of 15 December 2021 contained a lot of relevant evidence. Rather, at the hearing, the Tribunal asked questions to form a view of the relationship overall and to focus on issues that had been or may have been of concern to the delegate.

    Regulation 1.15A(3) matters

    The financial aspects of the relationship

22. 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 owed any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant matters to consider when assessing the financial aspects of the relationship.

23. There is no clear evidence of any joint ownership of real estate or other major assets. However, the Tribunal notes the applicant’s evidence that she contributed to the mortgage over the marital home. It may be that the applicant has an equitable interest in the property. (In her statutory declaration of 15 December 2021, she explained why it was that the sponsor’s previous wife’s name was still listed in respect of the house and the loan. This had been an issue which had been noted by the delegate).

24. With respect to any other joint assets and the extent of any pooling of financial resources, the Tribunal notes the parties’ claims in their documents submitted at the time of application. In the applicant’s application for the visa, she declared that they had opened a joint bank account ‘after we had made up our minds of getting married’.

25. It appears to the Tribunal that the parties may have had two joint accounts, one for everyday transactions and one for savings. The Tribunal has formed this view because of the sponsor’s statement in his statutory declaration of 7 July 2015. He declared, ‘[w]e have two [name of bank] Bank Accounts, which we share. 1 is used for day to day shopping & joint household expenses – it has a fluctuating balance’. He explained that the other was a ‘joint progress saver account earning interest – as long as we don’t withdraw from it. If we add $10 each month, we get a better financial bonus of some kind’. In the sponsor’s sponsorship form, he declared, ‘[w]e both have free access and separate debit cards attached to this joint progress saver account. At the moment, we have not added to it, as we have pooled our monies toward household debts.’ He further declared, ‘we discuss and pool all financial resources’.

26. The applicant did not submit any statements from the joint account that was being used for everyday transactions to the Department. Rather, she submitted:

    ·     statements from the Progress Saver account—statements from 20 February 2015 (when the account was opened) to 19 February 2016 and for the period 20 August 2018 to 20 February 2019 and an interim statement from 19 February 2016 to 27 July 2016; and

    ·     statements from the applicant’s personal Access Advantage Cheque account—statement for the period 20 November 2015 to 20 May 2016 and interim statements for the periods 20 November 2015 to 21 April 2016 and 18 January 2019 to March 2019.

27. The Progress Saver account statements evidence that the parties had opened and were using a joint bank account, albeit infrequently. Perhaps this is unsurprising given the account was a savings account. The Tribunal finds that the infrequent use of this joint bank account is not the reason, or a part of the reason for the Tribunal to affirm the delegate’s decision.

28. The statements from the applicant’s personal bank account evidence this as being the account where the applicant’s salary was deposited, and which was used for some supermarket purchases. Similarly, the Tribunal finds that the applicant’s decision to have her salary deposited into her personal account rather than one of the couple’s joint bank accounts is not the reason, or a part of the reason for the Tribunal to affirm the delegate’s decision. The Tribunal is mindful that it is not unusual for couples who marry later in life to pool only some of their financial resources.

29. In this review, the Tribunal has had the benefit of reviewing statements from another of the couple’s joint bank accounts, their ‘Access Advantage’ account that was opened on 29 March 2019. The applicant submitted statements for the period 29 March 2019 to 27 March 2020. These statements show money regularly deposited and then expended for various day to day household expenses.

30. The applicant also submitted further statements for her personal bank account (her individual Access Advantage account) for the periods 20 March 2019 to 20 May 2019 to 20 November 2019; from 20 January 2020 to 20 March 2020; and from 20 May 2020 to 20 November 2020. These statements evidence that this remained the account where the applicant’s salary was deposited. The applicant highlighted a number of transactions in these statements, including a number of transfers annotated as ‘to [Mr A]’. These statements also show expenditure at supermarkets and so on. 

31. In the applicant’s statutory declaration of 15 December 2021, she detailed the change in the arrangements in respect of the parties’ financial resources over the course of their relationship, particularly after the sponsor’s health deteriorated and he was no longer able to work. For example, she declared, ‘later, because I was responsible for buying groceries at home, the expenses were more from my personal account’.

32. At the hearing, the applicant told the Tribunal that, while at the start of their marriage they had used a joint bank account, later they used separate accounts. She said that they did this because the sponsor bought a lot of things.

33. The Tribunal is mindful that the parties may have stopped using their joint bank account/s for more than one reason.

34. With respect to any joint liabilities and the basis of any sharing of day-to-day household expenses, in the applicant’s application for the visa, she declared:

    we share our daily household expenses including grocery shopping, utility bills and home loans. I mainly contribute to our daily necessities and grocery shopping expenses, while [Mr A] takes charge of our home loans and utility bills such as gas, water and electricity.

35. However, the arrangements with respect to the payment for liabilities and day-to-day household expenses appears to have changed as the relationship progressed and the parties’ situation changed. According to the applicant’s evidence in her statutory declaration of 15 December 2021, after the sponsor was unable to work, she ‘took up the responsibility to financially support our family by paying for the house loan and our usual food and clothing, etc and he was responsible for paying for the house’s water and electricity bills and so on’.

36. At the hearing, the applicant explained to the Tribunal that for the first three years, the sponsor had been in charging of paying the home loan and she was responsible for paying everything else. She said that, from the end of 2018, she took on the responsibility for repaying the home loan and the other expenses too.

37. The documentary evidence, particularly the annotations mentioned above, supports the applicant’s claim that she took a greater role in supporting the sponsor financially as the relationship progressed.

38. Based on the evidence before the Tribunal, the Tribunal finds that, at the time of the application and until the cessation of the relationship, the applicant was contributing financially towards the couple’s expenses. The Tribunal accepts the applicant’s evidence that, as the relationship progressed, she took on greater responsibility for paying the couple’s household expenses. 

39. There is no clear evidence before the Tribunal that, at any time during the claimed relationship, one person in the relationship owed any legal obligation in respect of the other.

40. The Tribunal gives some weight to the evidence of the financial aspects of the relationship as suggesting that, both at the time of application and in the period prior to the cessation of the relationship, the parties were in a spousal relationship.

    The nature of the household

41. 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.

42. There is no clear evidence before the Tribunal that, at any time during the relationship, there was any joint responsibility for the care and support of children.

43. As has been noted, the applicant has a son, [Son A]. In the applicant’s statutory declaration of 3 February 2024, she declared that her son lived with her and the sponsor from 2016 to 2019. The Tribunal has noted [Son A’s] date of birth in the applicant’s application for the visa. The Tribunal notes that, at the time of application, he was [age] years of age. In the period 2016 to 2019, he was over 25 years of age. The Tribunal finds that at the relevant times, [Son A] was unlikely to have been a dependent.

44. In the sponsor’s sponsorship form he declared:

    I have a young [age] years old daughter I am attempting to gain custody of. [The applicant] has shown herself both willing and eager to provide all the love and emotional support that she and I know will be necessary to help my daughter re-assimilate with me and into our home.

45. However, there is no evidence that the sponsor’s daughter ever moved in with the couple.

46. In view of the lack of evidence, the Tribunal finds that, during the parties’ relationship, there was no joint responsibility for the care and support of any children.

47. With respect to the living arrangements of the persons, the evidence before the Tribunal is that both the applicant and the sponsor lived together in the home in a regional Victorian town, which had previously been the home of the sponsor and his ex-wife. At the hearing, the applicant explained that, before their marriage they had lived in separate rooms and after their marriage they had shared the same bedroom. She said that, during the relationship, they did not move to a different property. When the Tribunal asked the applicant whether there had been any periods when they had lived apart, she became emotional and recounted the sponsor’s threats that if she did not continue to repay the mortgage, he would throw her out onto the street. The Tribunal understands the applicant’s evidence to be that she and the sponsor lived together at the one residential address for the entirety of their spousal relationship.

1. The Tribunal notes that there is some documentary and third-party evidence in support of these claims. The third-party evidence includes the very credible oral evidence of [Son A] at the hearing—discussed in the next section of these reasons.

2. With respect to any sharing of the responsibility for housework, the Tribunal notes the applicant’s declaration in her application for the visa that:

   [Mr A] is in a poor health condition, he is suffering from chronic illnesses including ischaemic heart disease, diverticular disease and degenerative arthritis in every vertebra. Obviously he is not able to do any housework. Therefore, I am in charge of all our housework. I do cooking, clothes washing, home cleaning etc. We sometimes go shopping together, but I always carry all the goods as I do not want to burden his body.

3. In his sponsorship form, the sponsor had given consistent evidence, declaring:

   [The applicant] and I share the shopping. She selects all our food for health and diet as suggested by [name of] Hospital after care services. She will not let me carry the shopping, or do anything else that may add to my body’s disabilities. [The applicant] does an amazing amount of housework.

4. As is the case in many partner visa cases that come before the Tribunal, there is limited photographic or third-party evidence to corroborate the claims as to the responsibility for housework. At the hearing, [Son A] gave very credible oral evidence as to his knowledge of the arrangements for cooking and care for the house. This evidence is detailed in the next section of these reasons. The Tribunal accepts the applicant’s and [Son A's] evidence as to the responsibility for housework.

5. The Tribunal gives weight to the evidence of the nature of the household at the time of application up until the period that the relationship ceased. In the Tribunal’s view, this evidence is suggestive of the parties having been in a spousal relationship at the relevant times.

   The social aspects of the relationship  

6. Whether the persons represented 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 planned and undertook joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

7. With respect to whether the persons represented themselves to other people as being married to each other, the Tribunal notes that, at the time of application, the applicant declared in her application for the visa that their wedding had been witnessed by ‘family, friends and [the] reverend’ and that they met up with their ‘relatives and friends together regularly. [Mr A’s] mum, [and specified family members] live quite close to our home, so we celebrate all special festivals together’.

8. The applicant repeated and elaborated on these claims in her statutory declaration of 15 December 2021, declaring:

   We were in close contact with our family and friends. After marriage, we often greeted the families of both parties, and often call [Mr A’s] brother and mother here. He also chats with my family when I video call my sisters back in China. We also often attended [Mr A’s] Church activities very often, and we have held parties at home and invited friends to participate. Since the beginning of 2020, the epidemic has become severe, and because of [Mr A’s] poor health, he was unwilling to go out, so our social activities have decreased a lot.

   When [Mr A] was in good health, he returned to China with me to visit my family twice.

9. The Tribunal notes that there is much photographic and third-party evidence to corroborate such claims.

10. The Tribunal notes and gives weight to the evidence that, throughout the applicant’s and the sponsor’s claimed relationship, they represented themselves to other people as being married to each other.

11. With respect to the opinion of the persons’ friends and acquaintances about the nature of the relationship, the Tribunal notes the oral evidence of the two witnesses at the hearing—[Friend A] and [Son A].

12. [Friend A] told the Tribunal that he had first met the [applicant] through [a community agency] as her son [Son A] was teaching there. He said that he had met her a few times there. He said that he first met the sponsor at [an agency] event, and he thought that that may have been in August or September of 2019. He said that the sponsor introduced himself to [Friend A] as [the applicant’s] husband. He said that if he was out in the street in town that the applicant and the sponsor would see him and stop to have a chat. He said that he held the opinion that the applicant and the sponsor had been in a genuine and continuing relationship because of how the sponsor had first introduced himself to [Friend A] and because he had run into them together. The Tribunal found [Friend A] to be very credible. The Tribunal accepts and gives great weight to [Friend A’s] evidence of his opinion of the nature of the applicant’s and the sponsor’s relationship.

13. [Son A] told the Tribunal that he was the applicant’s son and that he held the opinion that the applicant and the sponsor had been in a genuine and continuing relationship because he had lived with the couple for three years. He said that he had lived with them from 2016 until approximately September 2019. He said that he had moved out because he and the sponsor had had an argument. He said that, at that time, the relationship between the applicant and the sponsor was ‘fine’ and that the argument had been between him and the sponsor. He said that when he had lived with the couple, it appeared to him that they loved each other and helped each other. He said that the applicant cooked most of the meals—clarifying that she cooked Asian food and that if the sponsor had wanted European food, then he had made that for himself. He said that the applicant had also looked after the home. He noted that the sponsor had also helped the applicant. [Son A] said that he had made coffee ‘all the time’ and that the sponsor had enjoyed that. He said that, on occasions, he had attended some events at the sponsor’s ‘Lodge’, including having dinner afterwards with the sponsor’s Lodge friends. He also noted that the sponsor’s friends would come to the house. The Tribunal found [Son A] to be very credible. The Tribunal accepts and gives great weight to [Son A’s] evidence of his opinion of the nature of the applicant’s and the sponsor’s relationship.

14. The Tribunal also notes and gives weight to the various written statements from other persons who were friendly with the couple.

15. With respect to any basis on which the persons planned and undertook joint social activities, the Tribunal notes that, at the time of application, the applicant declared in her application for the visa that ‘[w]e have bible studies together at the homes of our mutual friends and go to our church every Sunday. In addition, we went fishing and travelled jointly to Gippsland and China’. She also declared that ‘[w]e intend to travel to my hometown Shenyang at the end of this month and visit my family in China’.

16. As was noted earlier, the applicant repeated and elaborated on these claims in her statutory declaration of 15 December 2021. The Tribunal notes that there is photographic and third-party evidence—including the very credible oral evidence of [Friend A] and [Son A] —to corroborate such claims.

17. The Tribunal gives great weight to the evidence of the social and public recognition of the relationship, prior to its end. The Tribunal considers that the evidence in respect of the social aspects of the relationship strongly points to the applicant and the sponsor having been in a spousal relationship prior to the cessation of that relationship.

    The nature of the persons’ commitment to each other

18. 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 drew from each other, and whether the persons saw their relationship as long-term are all matters to be considered in determining the nature of the persons’ commitment to each other.

19. In the applicant’s application for the visa, she declared:

    We first met in a café in Guangzhou, China in 2013. He was having a trip while I was doing a business there. We greeted one another then started chatting. I was a business owner and doing [service 1]. He told me that he needed my help for [service 1 for] his [equipment] and he asked me if I would be able to do it in Australia. I said yes, but he said my service is not affordable to him, he would take the responsibility of my travelling fees and daily expenses. I agreed and we left our contact details to one another. We then contacted each other online. In 2014, I applied for a visitor visa to [service 1] his [equipment] in Australia. He is quite fussy about the service, so I spent a lot of time on it. Meanwhile, I did housework and cooking for him, he loves the Chinese dishes I made for him. He often took me to the beach, and we did fishing and shopping together regularly. As time goes by, we fell in love gradually.

20. In the applicant’s statutory declaration of 15 December 2021 that was filed in this review, she gave consistent and further detail about the inception and development of the relationship.

21. At the hearing, the Tribunal focused on asking the applicant about the inception of the relationship. The applicant gave consistent oral evidence about the inception of the relationship as in her previous declarations. The Tribunal asked her whether it was a chance meeting or whether they had been introduced. She replied that it had been a chance meeting. The Tribunal asked her to comment on the degree of coincidence of meeting someone who was interested in having [service 1 on their equipment] and her having the skills to do that. The applicant provided further detail about her claim about how they met. The Tribunal formed the view that the applicant was credible and while it is quite the coincidence, it is not outside the realm of possibility. Accordingly, the Tribunal accepts the applicant’s evidence about the inception of the relationship. The Tribunal also accepts the applicant’s claims, outlined in her written material, about the development of the relationship. 

22. The Tribunal also discussed with the applicant the following paragraph in the delegate’s decision.

    In the provided relationship statements, you and your sponsor state that you declared your feelings for each other and commenced a relationship on 1 June 2014 and that you moved to Australia to live permanently with your sponsor [later in] June 2014. In your Visitor (subclass 600) visa lodged on 11 June 2016, you presented yourself to the Department as a married woman wanting to travel to Australia for two weeks in order to discuss a business arrangement with your sponsor. A Departmental officer called your sponsor who confirmed that you were travelling to Australia to discuss business opportunities. I find that both you and your sponsor have provided inconsistent information to the Department and I find that this detrimentally affects your credibility.

23. In discussing this paragraph with the applicant, it became apparent to the Tribunal that the delegate erred in stating the year as 2016 as being when the applicant had presented herself to the Department as a married woman wanting to travel to Australia for two weeks to discuss a business arrangement with the sponsor. It will be recalled that the applicant and the sponsor married each other on [in] June 2015 and the applicant applied for the Partner visa on 16 July 2015.

24. From reviewing the applicant’s movement records, the applicant’s first trip to Australia was from [June] 2014 to [July] 2014. It appears to the Tribunal that the delegate may have meant to write 11 June 2014—not 2016. At the hearing, the applicant was adamant that her first trip to Australia was ‘only about the business’. She said that it was during her second trip to Australia—which the Tribunal notes was from [September] 2014 to [November] 2014—that the two of them became more familiar with one another and the sponsor asked her if she would like to become partners. She said the decision to marry was not made until the beginning of 2015. (The Tribunal notes that this was the time of the applicant’s third trip to Australia, from [November] 2014 to [February] 2015).

25. The Tribunal notes that in both the applicant’s and the sponsor’s forms lodged at the time of application, they both named their wedding day on [a day in] June 2015 as being the date on which they committed to a shared life together to the exclusion of all others.

26. The Tribunal has not been able to find reference in the documents to the applicant ever having declared that her relationship with the sponsor commenced on 1 June 2014. However, the Tribunal notes that in the sponsor’s two statutory declarations made on 7 July 2015, he does so. He declared that 1 June 2014 was the date on which their relationship had commenced and that they ‘had a mutual commitment to a shared life continuing on this basis, as a married couple’ (emphasis added) from that date. It appears to the Tribunal that the sponsor erred. Having had the opportunity of an in-person hearing with the applicant, the Tribunal prefers her evidence to the sponsor’s as to when the relationship commenced, especially given that the sponsor’s evidence italicised above is clearly incorrect because all the evidence is that the parties married [in] June 2015—not 1 June 2014. For these reasons, the information in the paragraph from the delegate’s decision that is extracted above is not the reason or a part of the reason for the Tribunal to affirm the decision under review.

27. The applicant’s evidence (in her application for the visa) is that she and the sponsor first met on 29 October 2013 in Guangzhou, China and that they committed to a shared life together to the exclusion of all others [in] June 2015—the day they married. In her statutory declaration of 15 December 2021, she declared that the relationship ended [in] October 2020. Based on all the evidence before the Tribunal, the Tribunal accepts the applicant’s evidence about the duration of the relationship. The Tribunal gives some weight to the duration of the relationship—over five years.

28. In her statutory declaration of 15 December 2021, the applicant declared that ‘[a]fter marriage, we started to share a room and lived together as husband and wife’. She further declared that they lived together since confirming their relationship in 2015 until she left the marital home on [a day in] October 2020. Based on all the evidence before the Tribunal, the Tribunal accepts the applicant’s evidence about the length of time during which the persons have lived together—over five years.

29. With respect to the degree of companionship and emotional support that the persons drew from each other, the Tribunal notes and gives weight to the applicant’s and the sponsor’s statements in their forms for the visa. The applicant declared that she supported the sponsor’s care needs by helping him to dress and undress, to shower and to take his medication. The sponsor gave consistent evidence in his sponsorship information.

30. The applicant further declared:

    We share every moment of our life since [June] 2014, and we support each other financially and emotionally in our daily life. We respect, trust, admire, understand and assist each other. In addition, we have the same religious beliefs. Although I do not speak much English, our emotional support in one another helps us overcome language barriers.

31. The Tribunal has no reason to doubt the accuracy of this evidence. Accordingly, the Tribunal accepts it and gives it some weight.

32. With respect to whether the persons saw their relationship as long-term, the Tribunal notes that in the applicant’s application for the visa she had declared, ‘I firmly believe our relationship will be a long term one’. In her statutory declaration of 15 December 2021, she declared that ‘[w]hen we first got married, our relationship was very good, but since 2019, maybe because of his health condition has also deteriorated, his temper has gradually become more and more irritable, and he often quarrelled with me’. The Tribunal accepts the applicant’s evidence and, from having considered all the evidence before the Tribunal, the Tribunal finds that, prior to the breakdown of the relationship, the applicant and the sponsor each saw their relationship as a long-term relationship.

33. The Tribunal gives some weight to the evidence of the nature of the persons’ commitment to each other until the relationship ceased. The Tribunal considers that this evidence is suggestive of the parties having been in a spousal relationship at the relevant times.

    Conclusion on time of application requirements   

34. As stated above, the Tribunal is satisfied that, at the time of application on 16 July 2015, the parties were validly married, as required by s 5F(2)(a) of the Act.

35. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, at the time of application on 16 July 2015, the sponsor and the applicant:

    ·had a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act;

    ·had a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and

    ·were living together or were not living separately and apart, as required by s 5F(2)(d) of the Act.

36. Given these findings, the Tribunal is satisfied that, at the time the visa application was made, the parties were in a spousal relationship.

37. However, the spouse requirement in cl 820.211(2)(a)(i) is not the only requirement in cl 820.211(2) which must be satisfied at the time of application. The sponsorship requirements in cl 820.211(2)(a)(ii) and cl 820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl 820.211(2)(d) must also be satisfied.

38. The Tribunal has reviewed the record of responses to the ‘Sponsorship for a partner to migrate to Australia’ form which is on the Department’s file. From the evidence before it, the Tribunal is satisfied that, at the time of application, the applicant was sponsored by the sponsor and that cl 820.211(2)(c)(i) was met. There is no information before the Tribunal to suggest that the circumstances outlined in cl 820.211(2B) applied so the Tribunal finds that the sponsor was not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal also finds that, at the time of application, cl 820.211(2)(a)(ii) was met.

39. The applicant’s movement records (which are on the Tribunal’s file) evidence that, at the time the applicant applied for the Partner visa on 16 July 2015, she held a Subclass 600 Visitor (Class FA) visa which was due to cease on 31 July 2015. As she held a substantive visa at the time of application, the further requirements in cl 820.211(2)(d) need not be met.

40. 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  

41. Based on the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased.

42. 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.

43. Relevant family violence is defined in reg 1.21.

44. 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.

1. These regulations, as relevant to this decision, are extracted in the attachment to this decision.

2. 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).

3. 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?

4. 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.

5. 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—this new instrument commenced on 30 March 2023 and replaces IMMI 12/116).

   Consideration of the applicant’s Form 1410 statutory declaration of 15 December 2021 and the accompanying more fulsome statutory declaration of 15 December 2021

6. 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).

7. The Tribunal finds that each of the applicant’s statutory declarations made on 15 December 2021 meet the requirements of reg 1.25(1) and (2).

   Consideration of evidence specified in LIN 23/026

8. Legislative Instrument LIN 23/026 specifies a minimum of two items of evidence from a list in the Schedule to the instrument and that not more than one of each type may be presented. Two of the items listed are:

   ·any of the following made by a police officer who is acting in their professional capacity: report; record of assault or family violence; risk assessment; witness statement; statutory declaration; and

   ·any of the following made by a social worker who is acting in their professional capacity: report; letter; statutory declaration.

100.   LIN 23/026 contains a saving provision that anything done under IMMI 12/116 continues to be in effect as if it had been done under LIN 23/026. This means that an applicant who made a valid claim of non-judicially determined family violence under IMMI 12/116 is not required to remake their claim under LIN 23/026.

Police evidence

101.   In this review, the applicant submitted the following police evidence:

·a completed (including signed and stamped) Family Violence Safety Notice dated [in] October 2020;

·a statutory declaration made by a named Senior Constable of Victoria Police on [a day in] May 2021; and

·a signed statement made by a named First Constable of Victoria Police on [a day in] August 2021.

102.   The Tribunal finds that the signed statement made by a named First Constable of Victoria Police on [the day in] August 2021, recounting the incident that led to the Family Violence Safety Notice being issued on [a day in] October 2020, fulfils the requirements of LIN 23/026.

Statutory declaration of [Ms A] dated 28 September 2021, with annexed statement

103.   In this review, the applicant submitted a statutory declaration made by [Ms A], a self-described Mental Health Social Worker, on 28 September 2021 together with an annexed statement.

104.   Amongst other things, the legislative instrument requires that a social worker’s evidence:

(a)  state that the alleged victim has made a claim of family violence;

(b)  state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and

(c)   identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.

105.   The Tribunal finds that [Ms A’s] statutory declaration (with the annexed statement) fulfils the requirements of LIN 23/026.

Conclusion

106.   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?

107.   The applicant claims that, during her relationship with the sponsor, she experienced verbal and emotional abuse perpetrated by the sponsor, including threats to withdraw his support of her application for the visa. In her statutory declaration, she also declared that, when he was angry, the sponsor would throw things.

108.   At the hearing, both [Friend A] and [Son A] gave very credible oral evidence about their knowledge of the family violence.

109.   [Friend A] explained that, in early 2021, he had been looking for a support worker, someone who could assist him with cleaning. He said that he employed the applicant in this role and after she had been working for him for about a month, he was aware that she was sad, and he found out that her relationship had broken down and that she was living in her car. He said that when he heard that, he offered her accommodation in the bungalow at the back of his home, which she accepted. [Friend A] said that the applicant lived there for about 18 months. He said that on two occasions, he thought in around July or August 2021, he had heard the applicant speaking with police in respect of the family violence. [Friend A] told the Tribunal that in all his dealings with the applicant, he had found her to be honest and trustworthy. He said that she continues to work for him as a support worker and that he is comfortable in giving her his credit card to tap at the supermarket to buy his items ([Friend A] is a person with vision impairment). The Tribunal thanks [Friend A] for his efforts in attending the hearing in person, noting that he lives in regional Victoria and had to travel a lengthy distance to attend the hearing. The Tribunal found [Friend A] to be a very credible person and accepts and gives weight to his evidence.

110.   [Son A] told the Tribunal that his mother had had a very difficult time. He said that, after his mother had experienced family violence, she had lived with him. He said that she had been sad and depressed and had expressed suicide ideation and that he had been very worried about her. The Tribunal found [Son A] to be a very credible person and accepts and gives weight to his evidence.

1. The Tribunal notes that the statutory declaration made by a named Senior Constable of Victoria Police on [a day in] May 2021, that was filed in this review, confirms that the police records evidence that the Family Violence Safety Notice was issued on [the day in] October 2020, naming the sponsor as the respondent and the applicant as the protected person. This declaration also states that, [in] November 2020, the sponsor was served with the final Family Violence Intervention Order. Based on this evidence, the Tribunal is satisfied that a final family violence intervention order was made against the sponsor for the protection of the applicant in relation to violence that occurred whilst the parties were in the relationship.

112.   Given the police evidence and the credible oral evidence from the two witnesses at the hearing, the Tribunal did not consider it necessary to ask the applicant to detail the family violence. The Tribunal is mindful that the applicant’s claims are detailed in various documents that are before the Tribunal. In taking this approach, the Tribunal was also conscious of the applicant’s mental health, including the evidence from both the mental health social worker [Ms A] and the applicant’s son [Son A], that the applicant had expressed suicide ideation.

1. Having considered all the evidence before it, 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.

   CONCLUSION

114.   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 820.211(1) and cl 820.221(3).

115.   Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

116.   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 Clarke
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).

…

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.