1910695 (Migration)

[2023] AATA 868

1910695 (Migration) [2023] AATA 868 (24 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910695

MEMBER:Kira Raif

DATE:24 March 2023

PLACE OF DECISION:  Sydney

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 visa:

·cl 801.221(6)(b) and (c) of Schedule 2 to the Regulations

Statement made on 24 March 2023 at 12:10pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – genuine relationship existed prior to the period of family violence – victim of family violence – relationship ceased– independent expert provided an opinion that the applicant had suffered relevant family violence – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.21, 1,23, 1.24, 1.25, Schedule 2, cls 801.221

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 on 15 April 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 13 June 2018 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the applicant did not meet cl 801.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 7 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from his present partner. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

5. 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.

6. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and he has been the victim of family violence.

7. 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).

8. In the present case the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence.

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

9. 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.

10. 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.

11. 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).

12. The applicant provided to the delegate his own statutory declaration, a declaration from a social worker and a statement from a registered psychologist. The Tribunal finds that 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?

13. In his submission to the Tribunal the applicant states that his wife and her brother demanded money from him and his wife demanded other goods. He states that he was threatened by his wife and her brother and later on he was threatened to pay them money. The applicant states that his wife’s father threatened to harm him and he fears for himself and his family. The applicant denies that his relationship with the sponsor ended before she was interviewed, noting that he was granted the temporary visa. The applicant submits that his partner does not tell the truth.

14. In oral evidence the applicant told the Tribunal that after arriving in Australia he lived with his partner in her parents’ home and there were problems with the relationship. He states that her family were intervening in the relationship and there were problems with initiating the physical contact. The applicant states that his wife wanted access to the money he earned and her family intervened about his clothing and appearance. The relationship continued for about 10 months. He wanted to leave her parents’ place and to have some ‘freedom’ but his wife refused. The applicant states that he considers her family’s intervention to be family violence and he states that her family had threatened to kill him and demanded $50,000 from him. He approached the police but the police told him to make a recording, otherwise they cannot act. The applicant states that the threats are ongoing and anyone who knows him and his father are told to pass the message to him that they could beat him up or kill him. The applicant states that the family violence was threatened by the sponsor’s father and brother and the sponsor herself and he has been avoiding her family. The applicant refers to an incident when his wife had hit him. He states that the situation is causing him concern as he does not want his present wife and child to be harmed.

15. The applicant’s present partner told the Tribunal that  when they met, she was told by others that she should stay away from him but he is now a changed person. She feels that he does not want to go out and does not want the ‘drama’, he is constantly looking over his shoulder because he is fearful.

16. Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of reg 1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert. On 24 March 2023 the independent expert provided an opinion that the applicant had suffered relevant family violence.

17. The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under reg 1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.

    Did the violence occur during the relationship

18. Where the independent expert’s opinion is that a person has suffered relevant family violence, at least part of the violence that led to that opinion must have occurred while the married or de facto relationship existed.

19. In his submission to the Tribunal dated 23 September 2022 the applicant describes his relationship with the sponsor. He states that from the time of his entry to Australia he lived with his parents in law and it is not true that he had other relationships. The applicant notes that he was granted the temporary Partner visa. The applicant states that he lived with his partner until late 2018 when they had an argument and he left to live at a friend’s house. The applicant refers to the demands his partner made on him and the yelling he was subjected to. The applicant denies that he had ever stated he would leave his partner upon being granted a visa. He states that he was looking forward to having children with his partner but she demanded money from him.

20. The applicant’s evidence to the Tribunal is consistent with his evidence to the independent expert, where the applicant described living with his partner and her family from his arrival in Australia until late 2018 when he moved out. The applicant stated that he believed at the time the relationship could be repaired and it was not until early 2019 that it ended.

21. The applicant provided considerable evidence of his relationship when the application was made. The delegate found that such evidence did not satisfy the statutory requirements, however, the Tribunal is mindful that  the applicant was granted the temporary visa, so that the presented evidence did satisfy the decision-maker that the applicant had a genuine spousal relationship with the sponsor.

22. The Tribunal places considerable weight on the following factors. The applicant and the sponsor lived with the sponsor’s parents following the applicant’s arrival in Australia and until the relationship breakdown. The Tribunal accepts that there was social and familial recognition of the relationship and, in light of the couple’s cultural expectations, the Tribunal is of the view that  the applicant and sponsor and the sponsor’s family would not have considered it appropriate for them to live together with the sponsor’s parents if the applicant and sponsor did not consider themselves to be in a genuine spousal relationship. The Tribunal is prepared to accept that, at least initially, the applicant and sponsor were committed to the relationship and viewed it as a long term one. There is evidence that both contributed to household expenses. The Tribunal acknowledges the adverse information recorded in the primary decision, with reference to the evidence of the sponsor, but the Tribunal is of the view that  such evidence is of probative value where the sponsor was interviewed after the relationship ended and there is evidence that it did not end on good terms.

23. On balance, and having regard to the totality of evidence (including the evidence that led to the grant of the temporary visa) the Tribunal is satisfied that prior to its breakdown, the applicant’s relationship with the sponsor was a genuine spousal relationship. The Tribunal finds that the violence occurred during the relationship. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for reg 1.22.

    Conclusion

24. 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 801.221(6)(b) and (c). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

25. 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 visa:

    ·cl 801.221(6)(b) and (c) of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member