1913724 (Migration)

[2023] AATA 4075

1913724 (Migration) [2023] AATA 4075 (9 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1913724

MEMBER:Stephen Conwell

DATE:9 July 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 09 July 2023 at 12:51pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine spousal relationship – relationship ceased – victim of family violence – court order – Family Violence Final Intervention Order – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.15A; Schedule 2, cl 801.211

CASES
He v MIBP [2017] FCAFC 206

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 29 May 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 29 August 2014 on the basis of her relationship with her 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied that the applicant and the sponsor were in a genuine spousal relationship.

4. The applicant was represented in relation to the review by his registered migration agent (representative). The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   Background

7. The applicant is a [age] year-old citizen of India. The applicant was granted a Partner (subclass 820) visa on 25 September 2015 on the grounds of being in a partner relationship with an Australian citizen, [Mr A].

8. On 4 March 2019 the applicant telephoned the Departmental to advise that her relationship with your sponsor had ended. A Departmental officer telephoned the applicant the following day, 5 March 2019. She is said to have told the officer that the relationship with her sponsor had not ended, however she claimed to have been suffering family violence perpetrated by her sponsor since 2016. A verbal timeframe of seven days was given to the applicant to provide any additional information to support her subclass 801 application.

9. On 6 March 2019 the Department sent a letter to the applicant, via her migration agent, inviting comment on the information considered adverse to her application, specifically regarding her claims that she and her sponsor have been residing together at an address in the Melbourne suburb of [Suburb 1]. The applicant provided a response on 12 April 2019.  However by the time of the delegate’s decision she had not notified the Department that her relationship with the sponsor had ceased.

10. The parties married [in] August 2014 in Australia. They separated with the sponsor moving out of the family home in February 2019.

11. [In] March 2019 the applicant made a report of family violence to the police and an interim intervention order was granted to her on that day.  A final intervention was made by the [Court] at [Suburb 2] [in] September 2019 to remain in effect [until] June 2020.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the parties are in a spouse or de facto relationship

12. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

13. At the time the visa application was made the applicant provided evidence of his marriage to the sponsor. 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?

14. The Tribunal has had regard to the evidence provided relating to the financial aspects of the relationship, including joint ownership of assets, and joint liabilities; the extent of any pooling of financial resources, any legal obligations owed to the other party; and any sharing of day-to-day household expenses.  These include evidence referred to in the delegate’s decision and in the applicant’s statutory declaration dated 14 July 2022, as well as all other evidence in the Departmental and Tribunal files.

15. The Tribunal has had regard to the evidence provided relating to the nature of the parties’ household, including any joint responsibility for the care and support of children, the parties’ living arrangements; and any sharing of housework. The Tribunal notes the delegate’s concerns regarding whether the parties lived together in a spousal relationship, particularly since the sponsor declared differing addresses of residence on different occasions. However it is satisfied by the detailed response to those concerns offered by the applicant in her statutory declaration.

16. Several photographs in the Departmental file reveal the parties in social settings together and with other family members. There are several photographs of the parties’ marriage celebration. Various documents addressed to the sponsor and the applicant showing that they lived in the same address in the Melbourne suburb of [Suburb 1]. The Tribunal is satisfied by the applicant’s explanation regarding the sponsor on other occasions having listed his address as being in the suburb of [Suburb 3].

17. The Tribunal has had regard to the evidence provided relating to the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities. The Tribunal has regard to the several statutory declarations made by friends and family members attesting to the genuineness of their married relationship.

18. The Tribunal has regard to the totality of evidence before it and accepts that since their marriage the applicant and sponsor lived together for four years in a spousal relationship.  As a consequence, the Tribunal is satisfied that the parties were in a genuine spousal relationship prior to the relationship ceasing.

    Family violence

19. In the present case, the applicant claims the relationship with her sponsor has ceased, and she has been the victim of relevant family violence.

20. The 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.

21. Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence.

22. Relevant family violence is defined in r.1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).

23. In the present case the applicant is seeking to establish family violence based on evidence tested before a court. Acceptable forms of court-tested evidence as set out in r.1.23 are: a court injunction under the Family Law Act 1975; an Australian Court order for the protection of the alleged victim; or a conviction or finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim. Where such evidence is provided, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence: r.1.23(1).

24. The applicant provided a copy of a ‘Family Violence Final Intervention Order’ made in her favour by the [Court] at [Suburb 2] [in] September 2019. The Order lists the sponsor as the defendant. The Order states that the defendant was  present at Court and agreed to the Order being made. 

25. The Tribunal is satisfied that a Court Order was made against the sponsor for the protection of the applicant in relation to violence that occurred while the parties were in the relationship; that the sponsor had an opportunity to be heard or otherwise make submissions to the Court prior to the Order being made.  Therefore, family violence is taken to have occurred under r.1.23 of the Regulations.

26. 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

27. 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 (6)(b) and (c) of Schedule 2 to the Regulations.

    Stephen Conwell
    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).