1919097 (Migration)

[2024] AATA 3001

1919097 (Migration) [2024] AATA 3001 (10 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Adele Wan

CASE NUMBER:  1919097

MEMBER:Glynis Bartley

DATE:10 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2)(a) of Schedule 2 to the Regulations

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

Statement made on 10 July 2024 at 12:00pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship had ceased –  applicant had suffered family violence committed by the sponsor – there was some social recognition of the parties’ relationship – applicant experienced emotional, psychological, verbal and economic abuse perpetrated by the sponsor – relationship between the review applicant and the sponsor was a genuine and continuing relationship at the time the application – decision under review remitted           

LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, rr 1.21, 1.23, Schedule 2, cls 820.211,820.221

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

ISSUE

1. The issue in this review is whether the applicant, [Mr A], was in a genuine and continuing spousal relationship with his sponsor, [named], at the time of application and, if so, whether the relationship has broken down and he has suffered family violence committed by the sponsor.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

3. The applicant applied for the visa on 16 February 2018 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant.

4. On 10 April 2019, the applicant’s then migration agent advised the Department that the relationship between the applicant and the sponsor (the parties) had ceased and that the applicant had suffered family violence committed by the sponsor. The representative claimed that the sponsor and members of her family had forcefully evicted the applicant from the parties’ home on 15 August 2018, and that the sponsor had subsequently blocked all contact with him. The applicant’s representative subsequently submitted documents, including a statutory declaration by the applicant, claiming that the sponsor had threatened the applicant and subjected him to family violence.

5. The delegate refused to grant the visa on 8 July 2019 on the basis that the applicant did not meet cl.820.211(2)(a) of the Regulations. The delegate was not satisfied that the applicant was in a genuine and continuing spousal relationship with the sponsor prior to the cessation of the relationship.

6. On 15 July 2019, the applicant applied to the Tribunal for review of the delegate’s decision.

7. The applicant appeared before the Tribunal in person on 29 May 2024 to give evidence and present arguments. He appeared by telephone at a brief second hearing on 12 June 2024. The Tribunal hearings were conducted with the assistance of an interpreter in the Urdu language.

8. The applicant was represented in relation to the review by his representative who attended both hearings.

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

   BACKGROUND

10. The applicant is a [age]-year-old Indian citizen. He first travelled to Australia on a Tourist visa (Subclass 676) on [date] March 2007 and stayed for three months. The applicant returned to Australia on [date] November 2011 after being granted another Tourist visa (Subclass 676), which ceased on [date] February 2012. He has remained in Australia continuously since [date] November 2011. The applicant twice applied for Protection visas (Subclass XA), and a Medical Treatment (Visitor) visa (Subclass UB), which were refused by the Department. Those decisions were affirmed by differently constituted Tribunals on review. The applicant subsequently lodged unsuccessful appeals to the Federal Circuit Court, the Federal Court and, in one case, to the High Court. The applicant has declared one previous marriage that ended in divorce. He has two children from that relationship, now aged [age] and [age] years, who live with their mother in India. The applicant’s father is deceased. His mother and five of his sisters live in India. One sister and one brother live in Australia. The applicant is employed as a [occupation].

11. The sponsor is a [age]-year-old Australian citizen by birth. She has declared one previous de facto relationship and has three adult children (two daughters and a son) from that relationship. The sponsor’s parents are deceased, and she has one stepsister. The sponsor receives Centrelink income support payments.

12. The parties stated in the application that the sponsor converted to Islam in November 2015. They met via a [website] in December 2015 and first met in person in January 2016. The parties formed a relationship and saw one another until April 2016, when the sponsor advised the applicant that she did not wish to proceed with the relationship because of her caring responsibilities towards her elderly father. The sponsor made contact with the applicant again in March 2017, and they resumed their relationship. The parties became engaged in early May 2017 and held an Islamic wedding later that month. They began living together in [Suburb 1] after their religious wedding ceremony. The parties registered their marriage at [Suburb 2] on [date June] 2017.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Prior to and following the hearings, the applicant’s representative provided additional documents to the Tribunal to support the application, including but not limited to the following: a statutory declaration by the applicant, photographs, medical reports regarding the applicant and the sponsor, bank statements in the applicant’s name and in the parties’ joint names, correspondence sent to the applicant from Centrelink, a psychology report regarding the applicant, a joint lease, correspondence sent to the parties at mutual addresses, submissions by the applicant’s representative, and a statutory declaration by the applicant’s treating psychologist.

14. In making my decision, I have had regard to the Department and Tribunal files, the oral evidence and submissions at the hearings, and the documents submitted by the applicant’s representative after the hearings.

15. While the applicant’s oral evidence was generally consistent with the documents provided to support the application, there were a number of significant discrepancies. These included when the parties’ relationship began to deteriorate, whether their relationship ended in August 2018 or March 2019, and who was present at the parties’ home on the date that the applicant left. In general, I did not find the applicant to be a credible witness. Many of his responses were longwinded and tangential. I considered that the applicant embellished his evidence, including about the extent of the sponsor’s physical dependence upon him and her conduct towards him during the period that the parties lived together.  

16. In the context of the applicant’s immigration history, I consider it likely that he actively sought a partner in Australia via a dating website to regularise his visa status. The applicant has made strenuous attempts to remain in Australia since he arrived here on a Tourist visa more than 12 years ago. Given my concerns about the applicant’s truthfulness, I placed more weight on the independent and contemporaneous evidence provided to support the application than his oral evidence. The reports and correspondence from the sponsor’s treating doctors and Centrelink were particularly compelling. Despite my conclusions about the applicant’s credibility, I was satisfied that the documents provided to the Department and the Tribunal, when considered cumulatively, support his claims regarding the nature of the parties’ relationship and, to a lesser extent, the sponsor’s conduct towards him prior to the cessation of the relationship.

    Were the parties validly married?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. There was no evidence before me to cast doubt on the validity of the parties’ marriage at [Suburb 2] on [date June] 2017, and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, I find that 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).

    Was there a spousal relationship?

18. The applicant claims to have been the spouse of the sponsor, but the relationship has now ceased, and he has been the victim of family violence. The Tribunal has first considered whether the applicant was, at the time of application, the spouse of the sponsor.

19. Clause 820.211(2)(a) requires that at the time the visa application was lodged, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case, the applicant claimed to be the spouse of the sponsor, who is an Australian citizen by birth.

20. ‘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.

    Financial aspects of the relationship

21. The parties did not have any joint assets or joint debts. They signed a joint six-month lease for a property at [Suburb 3] from November 2017, a copy of which was submitted to the Department, along with a bond payment receipt in joint names. I was satisfied that both parties were legally obliged to pay the rent for the [Suburb 3] property.

22. The applicant provided bank statements to support that the parties had a joint account with [a] Bank. The statements show that the sponsor’s Centrelink payments were being deposited into the account and that her income was being used to pay rent and purchase everyday items such as groceries, fast food and petrol. The applicant gave oral evidence that he was not working during the period that the parties lived together, although the Department granted him work rights in early 2018. As he did not have any income, the applicant was reliant upon the sponsor’s Centrelink payments, as well as loans from his family and friends. The applicant claimed that he borrowed $12,000 from his sister in India and $4,500 in total from two friends. There were no documents to support his assertions in relation to those funds. The joint and personal bank statements for the relevant period do not corroborate his claims.

23. The witness statutory declarations and statements do not give any insight into the financial aspects of the parties’ relationship.

24. While I accepted the applicant’s oral evidence that he had access to the parties’ joint account, it is not evident from the statements provided whether he used the account for his day-to-day expenditure. I do however accept that the rent for the [Suburb 3] property was paid from the parties’ joint account. During the hearing, the applicant demonstrated a good understanding of the sponsor’s income during the relevant period, including the rates of her newstart allowance and carer allowance.

25. As the applicant did not have any income during the period that he claims the parties lived together, I concluded that they did not pool their financial resources. The  applicant gave oral evidence at the hearing that he had $3,000 in savings when the parties formed a relationship and that their wedding cost around $700. The applicant’s personal [bank] statements show a minimal balance and there was no independent or reliable evidence to corroborate his claims about his savings.

26. I accepted that the applicant was financially dependent upon the sponsor from May 2017 until August 2018. Statutory declarations by the sponsor and her eldest daughter, [Ms B], dated 31 July 2017, confirm the applicant’s evidence regarding his dependence on the sponsor for food and accommodation because he did not have work rights at that time. Furthermore, the sponsor advised Centrelink about the parties’ relationship and that the applicant was reliant upon her financially because of his visa status. Centrelink continued to pay the sponsor the single rate of newstart allowance as a result. A letter from Centrelink, dated 22 July 2017, confirms the applicant’s evidence regarding its assessment of the sponsor’s income support payments.

27. The parties did not share their day-to-day household expenses because the applicant had no income. In the absence of supporting documentation, I was not prepared to accept that the applicant contributed his savings or borrowed money to help pay for the parties’ living expenses. Nonetheless, I gave some weight to the joint lease, joint bank account and notification to Centrelink of the parties’ relationship. Those documents support the applicant’s claim that at the time of application, and during the six-month period afterwards, the parties were in a genuine and continuing spousal relationship.

    Nature of the household

28. The applicant claimed that the parties lived together at three addresses between May 2017 and August 2018, when the sponsor and various members of her family forced him out of the parties’ [Suburb 3] home. The applicant said the parties lived with the sponsor’s daughters and her eldest daughter’s de facto partner, [Mr C], in [a suburb] from May to July 2017. From July to December 2017, they lived in [Suburb 1] with the sponsor’s daughters and Mr [C]. In December 2017, the parties moved to [Suburb 3] and lived alone in a granny flat until August 2018, when the applicant was forced to leave the property. He then returned to live with his sister. As  noted above, the lease for the [Suburb 3] property was in the parties’ joint names. The earlier leases were in the names of the sponsor’s eldest daughter and Mr [C].

29. Statutory declarations by the sponsor’s daughters provided to the Department confirm the applicant’s account of the parties’ living arrangements. I have placed some weight on that evidence.

30. The applicant stated in his statutory declaration, dated 17 August 2023, that he did all of the housework in the home because the sponsor has numerous health problems and required full-time care. He claimed during the hearing that the sponsor was so unwell on occasions that she could not undertake personal tasks such as toileting or brushing her own hair. The medical reports provided prior to the hearing confirm that the sponsor has numerous chronic health problems, but not the level of functional incapacity claimed by the applicant. I was mindful that the sponsor was receiving carer allowance from Centrelink to care for her father until his death in September 2017. When asked about this during the hearing, the applicant claimed that the sponsor’s health deteriorated after they moved to [Suburb 3] in late 2017. That evidence was not supported by the medical reports submitted prior to the hearing and I found it unconvincing.

31. The applicant’s bank personal bank statements for the period September to November 2017 show repeated transactions in Sydney, [details deleted]. The applicant claimed that the parties were living in [a region] at that time. When asked about the transactions, the applicant said his sister had a copy of his ATM card and may have used it during that period. After the first hearing, the Tribunal was provided with a statutory declaration by the applicant’s sister, Ms [D], dated 7 June 2024. Ms [D] said she held the applicant’s debit card as she had previously deposited money into his account. Ms [D] asserted that she used the applicant’s debit card for her own personal expenses. I found Ms [D]’s claims to be implausible, particularly as there were minimal funds deposited into the applicant’s account during the relevant period. Ms [D] did not offer any credible explanation as to why she did not use her own bank account to deposit and withdraw funds. The applicant also claimed during the hearing that the parties frequently travelled from [a region] to [Suburb 3] Hospital so the sponsor could have treatment. He said the transactions in his personal bank account likely reflect those trips. I did not find that assertion to be persuasive because the transactions evident in the applicant’s bank statements did not occur in [Suburb 3] or the surrounding suburbs.

32. It was uncontested that the parties did not have any joint responsibility for the care and support of children. While I accepted that the applicant assisted with household chores, I consider that he greatly embellished his evidence regarding the extent of his contribution. It was implausible that the sponsor was so physically disabled that she was incapable of undertaking basic personal care tasks, such as brushing her own hair. The parties’ joint bank account statements show that the sponsor was receiving carer allowance until September 2017 to provide care to her father. According to the applicant, the sponsor visited her father regularly at his nursing home after he was moved to full-time residential aged care. If the sponsor’s health was as dire as the applicant claimed, she would likely have been entitled to receive disability support pension rather than newstart allowance.

33. Despite my concerns about the applicant’s evidence, I was satisfied after having regard to the joint lease, the witness statutory declarations from the sponsor and her family, and the correspondence sent to mutual addresses, that the parties lived together from May 2017 until August 2018 and established a joint household. Overall, the documentary evidence regarding the nature of the household supports the applicant’s contention that the parties were in a genuine and continuing spousal relationship at the relevant times.

    Social aspects of the relationship

34. The applicant’s representative submitted photographs of the parties together at various locations, including at restaurants and while out shopping. Many of the photographs show the parties alone rather than with family and friends. I accepted that the sponsor’s daughters attended the parties’ wedding celebration, as did two of the applicant’s friends. Statutory declarations and statements by various witnesses, including the applicant’s mother and sister, confirm that they were aware of the parties’ relationship and believed it was genuine. I accepted that the applicant’s mother and sister attended the parties’ wedding celebration in May 2017.

1. Hospital and medical records submitted confirm that the parties’ relationship was disclosed to the sponsor’s treating doctors and various health care facilities. A number of the reports refer to the applicant as the sponsor’s carer and corroborate his evidence regarding the parties’ living arrangements, including that they had moved to [Suburb 3] together in late 2017. The applicant’s mobile telephone number was listed as the sponsor’s contact telephone number, including on a medication summary by [a named doctor], dated 24 January 2018.

2. A discharge referral regarding the sponsor by [a] medical officer at [Suburb 3] Hospital, dated 17 January 2018, described the applicant as the sponsor’s husband and carer. [The doctor] said the sponsor had recently moved to the local area from [Suburb 1] and was renting with her husband.

3. A report by [a] general practitioner, dated 7 December 2017, said the sponsor:

   “…is currently living with her husband and needs supervision and help to manage her poor health. She needs to attend multiple ongoing appointments with specialists, [a] surgeon, [an] optometrist and also [a] gynaecologist. She will benefit from support of her husband for ongoing management of her chronic and complex health problems…”

4. Importantly, the parties notified Centrelink of their relationship, and on 10 April 2018, the applicant was appointed as the sponsor’s Centrelink correspondence nominee. I placed substantial weight on that evidence because being the correspondence nominee allowed the applicant to act on the sponsor’s behalf when dealing with Centrelink, including to notify of any change in her personal circumstances that may affect her entitlement to payments and services.

5. Reports from the applicant’s treating psychologist, [Dr F], confirm that the applicant advised his psychologist of the parties’ relationship during the period that the parties were cohabiting. On at least one occasion during the relevant time, the sponsor attended a counselling session with [Dr F].

6. The applicant gave oral evidence that the parties had limited opportunities to socialise because of the sponsor’s health problems and their straitened finances. He said the sponsor did not tell her father that she had converted to Islam or about the parties’ marriage because it may have created problems.

7. I was satisfied that there was some social recognition of the parties’ relationship and that they represented themselves to their families, friends and the wider community as being married to each other, prior to the relationship ceasing. I accepted the applicant’s oral evidence that the sponsor concealed the parties’ marriage from her elderly father.

   Nature of the persons’ commitment to each other

8. The applicant stated that he was in a committed spousal relationship with the sponsor from May 2017 until March 2019, although he previously claimed that the parties’ relationship broke down in August 2018 when the sponsor and some of her family members forced him out of the parties’ [Suburb 3] home. He claimed that the sponsor was emotionally, psychologically and financially abusive towards him. Furthermore, she was controlling and isolated him from his friends and family. The applicant gave oral evidence that he became depressed and sought assistance from a psychologist.

9. I was troubled by the evidence regarding the rapid inception of the parties’ relationship. The applicant claimed during the hearing that the parties had fallen in love in 2016 and resumed their relationship the following year. However, in his statutory declaration dated 9 February 2018, the applicant claimed that the parties had fallen in love in 2017, shortly before their marriage. The applicant claimed that the sponsor had proposed marriage to him after he explained that in accordance with his religious beliefs, they could not live together unless they were married. I consider it more likely that the parties’ marriage was rushed because of the applicant’s visa status and to facilitate his permanent residence in Australia.

10. Correspondence provided to the Department shows that the sponsor nominated the applicant as the sole beneficiary of her superannuation account. I placed limited weight on that evidence because the balance of her superannuation is not shown and may well have been minimal. Furthermore, the sponsor could  have changed the nominated beneficiary relatively easily.

11. The sponsor’s decision to appoint the applicant as her Centrelink correspondence nominee is important because of the potential financial implications for her. Her disclosure to her treating doctors of the parties’ relationship is also significant because the sponsor has a number of chronic health conditions and requires specialist medical care. She told some of her treating doctors during the relevant period that the applicant was her carer.

12. The sponsor stated in her Partner visa sponsorship form that the parties are very much in love and see themselves as life partners. She said they provide each other with support and the applicant ensures the sponsor receives the health care she needs. The sponsor said the parties’ relationship is genuine, committed and permanent.

13. In her statutory declaration, dated 9 February 2018, the sponsor provided considerable detail about the nature of the parties’ relationship and her commitment to the applicant. That statutory declaration was evidently written to assist the applicant to have the Schedule 3 requirements waived. The sponsor said:

    “…If [Mr A] is required to leave Australia for an extended period of time, then this will undoubtedly cause us both a lot of emotional pain and stress. We are completely reliant on each other for all of our daily needs – we provide each other with love, laughs, support and unconditional commitment to overcome whatever we encounter in life together…”

14. Both of the sponsor’s daughter’s and one of the applicant’s sisters provided statutory declarations to support the application. They attested to the genuineness of the parties’ relationship and provided a reasonable amount of detail. In a statutory declaration dated 21 February 2018, by Mr [E]said he has known the applicant for two years and the sponsor for six months. Mr [E] said he has regular contact with both parties, and they are extremely affectionate towards one another and a happily married couple who care for one another. Statements by the applicant’s mother, the sponsor’s son-in-law and a mutual friend were also provided to the Department to support the application.

15. In her statutory declaration dated 12 June 2024, the applicant’s psychologist, Dr [F], said she saw the sponsor on 19 February 2018 following a referral from her general practitioner. Dr [F] said the sponsor was experiencing anxiety and depression and wanted a supporting letter to assist with the applicant’s Partner visa application. The sponsor reportedly told Dr [F] that she has numerous chronic medical conditions and requires the applicant to take care of her because her children are busy. The sponsor said the applicant supervises her medications and attends to all household chores. The sponsor reported that the applicant is the only one who takes care of her, and she wants to spend the rest of her life with him. It is not evident from Dr [F]’s statutory declaration whether the sponsor consented to the release of her personal information. Regardless, Dr [F]’s statutory declaration supports the applicant’s claims that the sponsor was genuinely committed to the parties’ relationship.

16. I had concerns about the applicant’s motivations for entering into the relationship with the sponsor given the  difference in the parties’ ages (the sponsor is [age] years older than the applicant), the sponsor’s numerous serious health problems, and the parties’ different cultural backgrounds. In my view, the applicant’s likely incentive for entering into the relationship with the sponsor was to advance his prospects of remaining in Australia. Nevertheless, I accepted that the parties lived together for around 15 months. During that time, the applicant accompanied the sponsor to hospital for treatment and to appointments with her general practitioner and various medical specialists. He also provided the sponsor with some day-to-day care, including medication management, although I considered that he embellished the level of care required by the sponsor. The applicant introduced the sponsor to his close family members, including his mother and sister. The applicant demonstrated a reasonable knowledge of the sponsor’s family at the hearing, and I accepted that he lived in the same household as her two daughters for around seven months. The applicant did not meet the sponsor’s father prior to the father’s death in September 2017. As mentioned above, the sponsor concealed the parties’ relationship from her father.

17. After having regard to all of the evidence before me, I was persuaded that the applicant was committed to the relationship with the sponsor.

    Overall assessment

18. After having regard to the above evidence, I was satisfied that at the time that the visa application was lodged on 16 February 2018, the parties were in a genuine and continuing relationship and had a mutual commitment to a shared life as husband and wife to the exclusion of all others. I accepted that the parties were living together at the time of application. Therefore, they did not live separately and apart on a permanent basis. I was satisfied that the requirements of  s 5F(2) of the Act were met at the time the visa application was lodged.

19. The sponsor is an Australian citizen by birth, as evidenced by the documents submitted to the Department to support the application. Therefore, the applicant meets cl.820.211(2)(a).

    Cessation of relationship

20. I was satisfied on the basis of the evidence before me that the parties’ relationship ended on 15 August 2018 when the applicant was forced out of the [Suburb 3] property. As discussed in more detail below, the claims subsequently made by the applicant that he ended the relationship in March 2019 were contrary to his earlier assertions and were not credible. Despite the discrepancies regarding the dates, I was satisfied on the basis of the evidence before me that the parties’ relationship has ceased.

21. The issue that arises is therefore whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

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

22. 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. 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: reg 1.23(3), (5), (7), (12), (14).

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

24. 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.

25. The applicant 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 IMMI 12/116).

26. 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).

27. The applicant submitted two Form 1410 statutory declarations, dated 24 May 2019 and 17 August 2023. There are significant discrepancies in the information he provided, in particular regarding when the parties’ relationship ceased. In his first statutory declaration, the applicant said the sponsor’s son and daughter came to the parties’ home on 15 August 2018 and forced him to pack all of his clothing and told him to “piss off” and leave their mother alone. The sponsor kept silent and did not say anything in response to their insults and bullying. The applicant spent the night at his sister’s home and returned to the parties’ home the next morning to see the sponsor. She was not home; the house was locked, and her clothing had been removed. The applicant said he attempted to contact the sponsor by phone, but she had blocked his number. The applicant declared that the parties’ relationship ended on 15 August 2018.

28. In contrast, in the applicant’s subsequent statutory declaration, dated 17 August 2023, he  said the parties’ relationship began deteriorating on 15 August 2018. The applicant said “…[i]n our 15 months marriage life we never had any issues and arguments…” The applicant claimed that the sponsor brought two of her children and another man with tattoos to the home and asked him to pack his belongings and leave. They told the applicant not to contact the sponsor anymore. The applicant did attempt to contact the sponsor to see what was happening and ask why those people came to the parties’ home and threatened him. The applicant said after a while the sponsor contacted him and wanted to reconcile. She apologised for the threats which she made and for bringing the other people to the property to scare him off. The applicant said he wanted to forgive the sponsor due to her poor health and because he loved her. They tried to rekindle their relationship, but it was very difficult due to her abusive behaviour. The applicant claimed the sponsor tried to gain control of him and threatened to withdraw the Partner visa application. On 14 March 2019, the applicant decided that they could no longer be together, and the relationship irrevocably broke down. 

29. I note that the applicant did not mention the involvement of the man with the tattoos in his first statutory declaration; he claimed that only two of the sponsor’s children attended the home on 15 August 2018.

30. In response to questioning during the first hearing about the inconsistencies in the applicant’s statutory declarations, in particular regarding the date the parties’ relationship ceased, the applicant said his previous agent advised him what to include in the first statutory declaration and the information provided is not correct. The applicant claimed his previous agent misled him. The applicant gave oral evidence that the details provided in his second statutory declaration are accurate.

31. I did not find the applicant’s explanation to be credible in the context of the evidence as a whole. He signed the first statutory declaration on 24 May 2019, and attested that the contents were truthful. I was satisfied that the parties’ relationship broke down in August 2018 as he originally claimed after the applicant was evicted from the parties’ home. The incident apparently followed a dispute with the sponsor and her family regarding an inheritance that the sponsor was due to receive from her late father. I do not accept that a man with tattoos attended the home as the applicant alleged or was involved in the incident.

32. Despite the discrepancies outlined above, the applicant set out in both statutory declarations the alleged violence perpetrated by the sponsor. He claimed that the sponsor subjected him to financial and emotional abuse, intimidation, deprivation, social isolation and threats.

33. The applicant provided medical reports by his treating general practitioners, [Dr G] and [Dr H]. In his report of 7 June 2024, [Dr H] said he has been treating the applicant since 2021 and the applicant has a number of physical and mental health conditions, including anxiety and depression. The applicant is prescribed antidepressants and receiving counselling for his depression. [Dr H] said “…the cause of [the applicant’s] psychological issue is family violence during his marriage, as he alleges…”

34. The applicant also submitted a statutory declaration by his psychologist, Dr  [F], dated 12 June 2024. Dr [F] said she has been seeing the applicant since October 2016 for psychological counselling. Dr [F] said at the beginning of their relationship, the parties had a mutual understanding and were loving and respectful towards each other. However, in late March/early April 2018, the sponsor’s attitude started to change, and she became violent, impolite and verbally and emotionally abusive. The sponsor made racist comments to the applicant and threatened to withdraw his sponsorship and send him home to India. Dr [F] said the applicant experienced emotional, psychological, verbal and economic abuse perpetrated by the sponsor. As a result, the applicant has post-traumatic stress disorder and adjustment disorder. The incidents have aggravated the applicant’s mental health and wellbeing and impacted his social life. Dr [F] said the applicant was trapped in an abusive relationship due to his immigration status, language barriers, lack of knowledge, fear and the sponsor’s use of his immigration status as a means of control.

35. I was satisfied that the statutory declarations made by the applicant meet the requirements of the regulations. The applicant claims that he was the victim of family violence committed by the sponsor and he sets out the allegations of family violence. Furthermore, I find that the report referred to above by [Dr H], a registered medical practitioner performing the duties of a medical practitioner, and the statutory declaration by Dr [F], a registered psychologist, are two types of evidence specified in IMMI 12/116.

36. 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?

37. I had regard to the applicant’s oral evidence as well as the supporting documentation provided by his representative.

38. The applicant’s account of the sponsor’s conduct towards him prior to 15 August 2018 varied significantly, including regarding whether she was verbally abusive towards him in the months leading up to their separation. I concluded that the applicant has increasingly exaggerated his evidence regarding the sponsor’s conduct with the passage of time.

39. Nonetheless, the applicant has been consistent in his account since April 2019 that the sponsor, with support from her family, evicted him from the parties’ home on 15 August 2018 and threatened his safety. Threats were also made to withdraw the sponsorship of his Partner visa. While I do not accept that the applicant was subjected to much of the abuse he claims, including social isolation and financial abuse, his account of the incident on 15 August 2018 has been constant for more than five years. The sponsor’s decision to appoint the applicant as her Centrelink correspondence nominee and arrange for her Centrelink payments to be deposited into the parties’ joint account undermines the applicant’s claims that the sponsor was subjecting him to financial abuse. On the contrary, the sponsor gave him considerable access to, and control over, her finances. The applicant’s claims regarding social isolation were also not supported by any independent or reliable evidence. I accepted however that the sponsor and her family compelled the applicant to leave the parties’ home and threatened to send him back to India if he did not comply. I was satisfied that the applicant moved out of the parties’ [Suburb 3] home on 15 August 2018 because he genuinely feared for his safety and wellbeing.

1. Having considered all of the evidence before me, I was satisfied that for the purposes of reg 1.23, 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.

   Conclusions

2. 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.820.221(3). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

3. For completeness I note that there are references in the Department file to the applicant failing to meet the Schedule 3 criteria because he did not hold a substantive visa when he lodged the Partner visa application on 16 February 2018. As that issue was not addressed by the delegate, I have not considered it.

   DECISION

4. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

   ·cl.820.211(2)(a) of Schedule 2 to the Regulations

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

   Glynis Bartley
   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.