1922326 (Migration)

[2023] AATA 2234

1922326 (Migration) [2023] AATA 2234 (19 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Damneet Ahluwalia (MARN: 0960501)

CASE NUMBER:  1922326

MEMBER:Margie Bourke

DATE:19 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

Statement made on 19 May 2023 at 5:25pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – relationship ceased – COVID-19 concessions not applicable – family violence claim – intervention order – whether genuine spousal relationship existed prior to cessation of relationship – sponsor’s acts of infidelity – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 1.23; Schedule 2, cl 100.221

CASES
Cao v Minister for Immigration & Anor [2007] FMCA 225

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 22 July 2019 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 July 2017 on the basis of her relationship with her sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221 because the delegate was not satisfied the applicant was in a spousal relationship with the sponsoring partner within the meaning of s.5F(2), prior to the relationship ceasing.

5. The Tribunal had regard to its obligations to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the applicant, and the nature of the review. The Tribunal was of the view that the conduct of the hearing by video would allow the applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to enable the Tribunal to properly assess the evidence before it. The review did not involve an extensive amount of paperwork to be put to the applicant during the course of the hearing. The hearing was scheduled at a time when the availability of in-person hearings was restricted due to the ongoing pandemic. For all these reasons the Tribunal considered it was appropriate that the hearing was conducted by video connection, and the applicant was invited to attend the hearing by video.

6. The applicant appeared before the Tribunal by video on 27 April 2023, and a resumed hearing on 4 May 2023 to give evidence and present arguments.

7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing by video.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background information and circumstances relevant to the review

9. The applicant submitted prior to the decision of the Department dated 22 July 2019, that the relationship with the sponsoring partner had ceased and that she met the criteria in cl.100.221(4) as she had experienced relevant family violence in her relationship with the sponsoring partner.

10. In the Department’s decision record dated 22 July 2019, the delegate found based on the information provided to the Department that the relationship between the applicant and sponsor did not meet the definition set out in s.5F(2), and therefore there was no requirement to consider the family violence claims of the applicant.

11. The following dates are relevant to information in this review: –

12. The applicant arrived in Australia [in] April 2017 as the holder of a tourist visa. The applicant and the sponsor were married in Australia [in] April 2017. The applicant departed Australia [in] July 2017.

13. The applicant lodged the application for the subclass 309 and subclass 100 visa offshore on 20 July 2017.

14. The applicant returned to Australia [in] October 2017 as the holder of a tourist visa. The applicant departed Australia [in] January 2018.

15. The applicant was granted the subclass 309 visa on 13 February 2018. The applicant arrived in Australia as the holder of a subclass 309 Partner visa [in] February 2018.

16. The applicant provided a detailed statement attached to her statutory declaration form 1410 signed 19 March 2019, in which she states that on Anzac Day, 25 April 2018 after an argument in which the sponsor punched her twice to the face she moved out of their home. The applicant also declared that prior to that argument she had discovered the sponsor had a tinder account on his phone and had been using a “hook up” social site since January 2018. The applicant recorded that she spent Mother’s Day 2018 with the sponsor and his family, there was ongoing communication during May, she invited the sponsor to dinner for his birthday in [month], in October he called her abusing her and admitted breaking into her home. The applicant recorded that she and the sponsor attempted reconciliation and therapy in November 2018, that after this the sponsor told her he had been having an ongoing sexual relationship with another woman, and the applicant recorded that she became aware he had relations with four other women during the time of the relationship between the applicant and the sponsor.

17. The applicant provided a statement she made to police at [the] Police Station dated 29 January 2019, in which she declared that she found out the sponsor had been cheating on her in December 2017. She also describes in the statement the physical assault on Anzac Day 2018. The applicant described abusive and persistent messages from the sponsor to herself and her family and friends made on 25 January 2019.

18. [In] May 2019 the Melbourne Magistrates’ Court made an intervention order for the protection of the applicant against the sponsor for a period of 8 ½ months to 31 January 2020.  The application for the intervention order was not provided to the tribunal. The applicant stated she did not proceed with any charges against the sponsor. The evidence of the applicant was that the intervention order was made in relation to incidents and events that occurred in January 2019. The Tribunal notes the police statements include the description of the assault by the sponsor on the applicant on 25 April, 2018, and this may have formed part of the reasoning for the intervention order made in May 2019.

19. In the hearings the applicant confirmed that she was aware of the tinder account which she discovered in February 2018, and that the sponsor had operated from at least January 2018. The applicant confirmed she became aware later in 2018 that the sponsor had relations with other women. The applicant stated in the hearing that the tinder account meant to her that the sponsor was actively seeking other relationships with women, and was not committed to her or the marriage relationship. The applicant stated in her evidence in the hearing in answer to a question from the tribunal, that the sponsor did not have a mutual commitment to a shared relationship with her to the exclusion of all others from January 2018.

    Assessment of the evidence and its relevance to particular claims

20. The Tribunal finds the evidence of the applicant to be credible, reliable and truthful. The tribunal accepts the written and oral evidence of the applicant.

21. The Tribunal accepts that the documentary evidence in relation to the circumstances of the relationship between the applicant and the sponsor is limited. The Tribunal finds that this is plausible in circumstances where the spousal relationship was of short duration, and ended in circumstances of family violence.

22. The applicant’s representative submitted that the applicant would meet the requirements for the visa because the covid 19 concessions would apply to her application. The covid 19 concessions apply to Tribunal reviews in relation to subclass 100 visas when the Department decision records are made after 26 February 2021 and the review applicant was onshore during the concession period, (which commenced on 1 February 2020). In this review the Department’s decision record is dated 22 July 2019, and predates the requirements for the covid concession policy to apply. Accordingly, the covid 19 concessions do not apply to this review.

23. The Tribunal accepts the evidence of the applicant that the relationship broke down and ceased on 25 April 2018, when the applicant left the marital home after experiencing physical violence perpetrated by the sponsor.  The Tribunal accepts the evidence of the applicant that the applicant and sponsor remained in contact after that date and there were attempts at reconciliation including therapy after that time.

24. The Tribunal has applied the principles of Cao v Minister for Immigration & Anor [2007] FMCA 225, that it is a matter of fact and degree in the circumstances of the particular case whether an extra-marital sexual encounter indicates a lack of the required commitment to a shared life as a married couple to the exclusion of all others.

25. The Tribunal is satisfied that during the relationship of the sponsor and the applicant, and prior to their marriage, the sponsor committed acts of infidelity.  However, the circumstances of engaging the services of an online social application to meet other partners and arrange online dating is persuasive evidence that the sponsor behaved as if he was not married, and was not committed to an exclusive marital relationship with the applicant. 

26. The applicant’s evidence in the hearing was that she discovered the sponsor was cheating on her during the marriage relationship, she wanted to find out more about the sponsor’s behaviour, and she believed that his tinder account meant the sponsor was not committed to the marital relationship with her. The applicant stated that she wanted to find out more about the sponsor’s other relationships.  The Tribunal accepts the applicant found the sponsor’s tinder account after she arrived in Australia as the holder of the subclass 309 visa, but realised the sponsor had been operating the tinder account to pursue other relationships from at least January 2018.

27. The Tribunal accepts the evidence of the applicant that she assesses that the sponsor did not have a commitment to the relationship with the applicant to the exclusion of all others, after January 2018. The Tribunal accepts that prior to January 2018 the sponsor may have committed acts of infidelity, but that during 2017 the applicant believed the sponsor remained committed to their married relationship. The Tribunal has considered that the sponsor did not have a mutual commitment to a shared life as a married couple with the applicant to the exclusion of all others, based on the applicant’s evidence, and its assessment of the circumstances of the relationship at the relevant time.

28. The Tribunal has assessed whether the applicant and sponsor were in a spousal relationship within the meaning of s.5F(2), at the time of application, and at the time of the claimed family violence.

29. The Tribunal discussed with the applicant that any claim for family violence must include family violence that occurred during the existence of the relationship, and this must have occurred before the cessation of the relationship, and while the relationship met the requirements of s.5F(2).

    SPOUSE/DE FACTO (cl 100.221(2)(b), (2A)(b))

    Whether the parties are in a spouse or de facto relationship

30. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen.

31. In the present case the applicant claims to have been the spouse of the sponsor, but the relationship has now ceased, and she has been the victim of family violence.

32. Clause 100.221(4)(c)(i) provides an exception to the requirement that the relevant spouse or de facto relationship is continuing in cl.100.221(2) or (2A) and requires that the relationship between the applicant and the sponsor has ceased and the visa applicant has suffered family violence.

33. ‘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?

34. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. I am satisfied based on the registered marriage certificate that the parties were married [in] April 2017 at [Suburb 1], Victoria. I am satisfied that the sponsor was divorced and the applicant had never been previously married. 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?

35. Financial aspects of the relationship: – the tribunal is satisfied that the applicant and sponsor did not have joint ownership of real estate or major assets. The tribunal is satisfied that the applicant and sponsor did not have joint liabilities excluding rent commitments and utility bills. I am satisfied that when the parties resided together they were both employed and had separate accounts. I accept that the applicant and sponsor had a joint account that has since been closed, but I accept the evidence of the applicant that the applicant and the sponsor would pool their financial resources by transferring $500 each month into the joint account towards joint expenses and activities. I am satisfied that the applicant and sponsor shared financial responsibility for the rent and utility bills through their separate accounts. I accept that they agreed to assign each other separate financial responsibilities for the household, and the applicant was responsible for purchasing groceries. I am satisfied that the applicant had added the sponsor as a beneficiary to her superannuation. I accept that neither party in the relationship owed a legal obligation in respect of the other. I am satisfied the applicant and sponsor shared day-to-day household expenses as per their arrangements. The evidence of the financial aspects of the relationship indicates that at the time of application and subsequently until the relationship ceased, the applicant and sponsor were in a genuine and continuing relationship.

36. The nature of the household: – the Tribunal is satisfied that during the course of their relationship after their marriage [in] April 2017 until their separation a year later on 25 April 2018, the applicant and sponsor resided in one rental property in [Suburb 2]. The Tribunal is satisfied this was a four bedroom, two bathroom home. The Tribunal accepts that the applicant and sponsor shared one bedroom, the applicant’s son moved in with them and had another bedroom, a third bedroom was used as a study, and the fourth bedroom was set up for the use of the sponsor’s mother. The Tribunal is satisfied that the applicant and sponsor had joint responsibility for the care and support of the sponsor’s adult son in the sense that he shared their home, and the applicant assisted to provide his meals, do his laundry and pack his lunches for work. I accept that the applicant has two children who reside in [Country 1], and the sponsor is not involved in their care or support. The Tribunal is satisfied that the applicant predominantly did the housework, the sponsor cared for the garden and did most of the cooking and they shared the household responsibilities on this basis. The evidence of the nature of the household indicates that at the time of application and subsequently until the relationship ceased the applicant and sponsor were in a genuine and continuing relationship, and that they lived together, and not separately and apart on a permanent basis.

37. Social aspects of the relationship: – there is a very limited evidence provided to the Tribunal that the parties represented themselves to other persons as married to each other, or of the opinion of friends and acquaintances as to the nature of the relationship. I have considered the information provided to the Tribunal and to the Department including photographs, evidence of travel and evidence of communication. I have considered the evidence of communication that shows the threats and abuse sent by the sponsor to the applicant. I accept there is a police statement provided by the friend of the applicant, TF, who refers to the applicant contacting her on 25 April 2018, that she was aware of the sponsor being the husband of the applicant, and that the applicant had previously told her that she had discovered the sponsor was having an affair. The statement of TF was made to the police and refers to the assault and abuse suffered by the applicant in April 2018. I have considered the two statutory declarations provided by the applicant one dated 14 March 2019 signed by PF, and one dated 19 March 2019 signed by SJ, who described incidents when they became aware that the applicant had had arguments with her husband and had bruises and that she had disclosed she felt unsafe, around Anzac Day 2018. I am satisfied that there is evidence that the parties undertook joint social activities including travelling together. I am satisfied that the parties represented themselves to other people as being married to each other. I am satisfied that in the opinion of the applicant’s friends and work colleagues the nature of the relationship was, or had become in 2018, argumentative, abusive and unsafe for the applicant. The evidence of the social aspects of the relationship at the time of application and subsequently until the relationship ceased, indicate that the applicant and sponsor lived together, and not separately and apart on a permanent basis.

38. Nature of the persons’ commitment to each other: – the Tribunal is satisfied that the parties were married [in] April 2017, separated on 25 April 2018 and have not yet formally divorced. The Tribunal is satisfied that the parties lived together [from] April 2017 to 4 July 2017, (approximately two and a half months), from 11 October 2017 to 10 January 2018 (approximately three months) when the applicant was in Australia as the holder of tourist visas, and from 17 February 2018 to 25 April 2018 (approximately two and half months), after the applicant was granted the subclass 309 visa, a total of approximately eight months. The Tribunal accepts the evidence of the applicant that at times the relationship was fantastic and exciting but it also became destructive and violent. The Tribunal accepts the evidence of the applicant that the sponsor stopped making time for her, he could be controlling, and she was isolated and did not know anyone here. The Tribunal accepts that the applicant left two children with their father in [Country 1] to migrate to Australia. The Tribunal is not satisfied based on the evidence before it that the parties provided any degree of companionship or emotional support to each other. The Tribunal accepts that at the time of marriage the applicant and the sponsor saw the relationship as long-term but this commitment and hope for the future evaporated. The evidence of the nature of the persons’ commitment to each other at the time of application and subsequently until the relationship ceased is limited but does indicate the time of application was genuine and continuing.

1. Any other circumstances of the relationship: – the application for the visa was made on 20 July 2017. The applicant has made a statement to the police that she became aware the sponsor was cheating on their relationship in December 2017. The applicant stated in her oral evidence that the sponsor’s behaviour after their marriage was to isolate her, and control her social movements. The applicant has provided a detailed written statement to the Department that she was aware the sponsor had opened a tinder account in January 2018 which she discovered in February 2018. The applicant has told the tribunal in her oral evidence that upon her discovery of the tinder account she believed that the sponsor was not committed to a shared life with her in the relationship as a married couple to the exclusion of all others, but was actively seeking relationships with other women from January 2018. The Tribunal accepts the evidence of the applicant. The Tribunal accepts the written evidence provided by the applicant of the evidence of the social aspects of the relationship after the time of application including the statements provided by the applicant made to the police by her friend TF, and the statutory declarations made by her work colleagues, PF and JS, and her own statement made to the police and her own statements provided to the Department, indicate that from January 2018 the sponsor did not have a mutual commitment to a shared life as a married couple to the exclusion of all others.

2. The Tribunal is satisfied that at the time of application, namely 20 July 2017, and as assessed by the Department in granting the subclass 309 visa on 13 February 2018,  and subsequently, the applicant was in a spousal relationship with the sponsor.

3. The Tribunal is satisfied after assessing all the information before it including the circumstances of the relationship as set out in reg 1.15A(3), that the spousal relationship with the sponsor did not continue after the end of 2017. The Tribunal accepts the sponsor’s behaviour to the applicant was controlling and isolating, and escalated into violence towards the applicant, whilst the sponsor also pursued other relationships. The Tribunal finds the sponsor did not have a mutual commitment to a shared life as a married couple to the exclusion of all others in January 2018 and following.

4. The Tribunal accepts the applicant remained committed to the relationship to the exclusion of all others.

5. For the reasons set out above, before the relationship itself ceased on 25 April 2018 by the applicant leaving the marital home after being physically assaulted by the sponsor, the relationship between the applicant and the sponsor ceased to meet the requirements in s.5F(2) in January 2018.

6. The Tribunal is satisfied based on its assessment of the evidence and the circumstances of the relationship between the applicant and the sponsor, including the credible evidence of the applicant, that the sponsor ceased to have mutual commitment to a shared life as a married couple with the applicant to the exclusion of all others in January 2018.

7. The Tribunal finds that from January 2018 the relationship between the applicant and the sponsor did not meet the requirements of s.5F(2)(b), namely that the applicant and sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others.

   Criteria to be satisfied at the time of decision in cl.100.221(4)

8. The requirements of cl.100.221(4) that apply to family violence claims are as follows: the applicant meets the requirements of this subclause if:-

   (a) the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and

   (b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and

   (c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) - the following circumstances applies: (i) either or both of the following: (A) the applicant; (B) a member of the family unit of the sponsoring partner or of the applicant or of both of them; has suffered family violence committed by the sponsoring partner

9. The applicant did not enter Australia as the holder of the subclass 309 visa until 17 February 2018. Based on the evidence of the applicant, the Tribunal is satisfied that the relationship between the sponsor and the applicant, did not meet the requirements for a spousal relationship as set out in s.5F(2), from January 2018 on. Therefore, at the time the applicant first entered Australia as the holder of a subclass 309 visa, the relationship between the applicant and sponsoring partner had already ceased. The applicant cannot meet the criteria of cl.100.221(4)(c) that she suffered family violence committed by the sponsoring partner after the applicant first entered Australia as the holder of the subclass 309 visa, as the relationship between the applicant and the sponsor ceased to meet the definition of a spousal relationship prior to the applicant first entering Australia as the holder of a subclass 309 visa.

10. The Tribunal discussed with the applicant that the intervention order dated May 2019 was made after the cessation of the relationship, which the tribunal has concluded did not continue to meet the definition of a spouse relationship after January 2018.   The evidence provided to the tribunal by the applicant is that the intervention order was made on the basis of, and related to, behaviour of the sponsor and the incident that occurred in January 2019. The Tribunal accepts that the intervention order may also have been made on the basis of the violence that occurred between the sponsor and the applicant on 25 April 2018, and which is described by the applicant in her police statement; the tribunal does not know whether this incident was relevant to the making of the intervention order, as it does not have the application for the intervention order. However, this incident of violence also occurred after the relationship between the applicant and sponsor did not continue to meet the definition of spousal relationship.

11. The Tribunal discussed with the sponsor that in these circumstances, it could not rely on the intervention order as meeting the evidentiary requirements for a judicial claim that the applicant had suffered relevant family violence during the spousal relationship with the sponsor. The Tribunal is not satisfied that the intervention order meets the evidentiary requirements of family violence as the violence or part of the violence that led to the granting of the order must have occurred while the married relationship existed between the alleged perpetrator and the spouse of the alleged perpetrator. The intervention order does not meet the requirements of reg 1.23(4) and (5).

12. The Tribunal had discussed with the applicant whether she wished to provide information that she could meet the evidentiary requirements for a non-judicial claim that the applicant had suffered relevant family violence in the hearing on 27 April 2023. The Tribunal had invited the applicant at the conclusion of the first hearing to consider providing evidence that may establish that she meets the non-judicial evidentiary requirements for a claim of family violence prior to the relationship ceasing, and prior to the findings of the tribunal based on the applicant’s evidence that the relationship did not continue to meet the definition of spousal relationship in s.5F(2) after January 2018.  The Tribunal requested any further submissions be provided by 18 May 2023.

13. The applicant was invited to a resumed hearing on 4 May 2023 to discuss the implications of the requirements of cl.100.221(4), and whether the applicant could successfully claim to meet the evidentiary requirements given the requirements of that subclause.  The Tribunal invited the applicant to the hearing on 4 May 2023 to discuss that the evidence the applicant had been invited by the tribunal to provide, namely evidence to meet the non-judicial family violence provisions, may not satisfy the requirements of cl.100.221(4), in the applicant’s circumstances. The Tribunal wished to be clear with the applicant that it may have been incorrect to invite her to provide that information.

14. After the resumed hearing on 4 May 2023, the applicant provided further information to the Tribunal by the due date of 18 May 2023.  The information provided to the tribunal after the hearings, included a submission, and two attached documents,namely a report dated 3 May 2023 confirming the applicant and sponsor attended counselling on four occasions, 29 October 2018, 7 November 2018, 27 November 2018, and 11 December 2018, and a screen shot of a text message from “delusional” whom the applicant records is also known as the sponsor, on 29 November 2018, in which the writer apologises for the hurt caused, thanks her for the attempts at reconciliation and states she does not have to contact him or see him.  The applicant submits that this evidence supports that both the sponsor and herself had a desire to continue the marriage and were realistic about their future.

15. The Tribunal has considered the additional evidence and submissions, and accepts the applicant remained in contact, and met occasionally, and tried counselling therapy in 2018, after the relationship broke down on 25 April 2018 when the applicant left the marital home after being the victim of violence from the sponsor.

16. The tribunal has assessed the additional evidence. The tribunal finds that the evidence confirms the previous evidence before it that the applicant and the sponsor had resumed contact after their separation, and engaged in counselling. The evidence does not suggest the marital relationship between the applicant and the sponsor was reconciled or was re-established. The additional evidence does not change the assessment of the applicant’s evidence before the tribunal that the sponsor did not have a commitment to the married relationship from January 2018 when he actively looked for other partners through his tinder account, and subsequently formed other relationships.  The tribunal is satisfied that from January 2018 the sponsor did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and therefore did not meet the requirement of s.5F(2)(b) for a spousal relationship.

17. At the time the applicant came to Australia as the holder of the subclass 309 partner visa, the relationship between the applicant and sponsor did not meet the requirements of cl.100.221(2) or (2A), because the relationship did not meet the requirements for a spousal relationship within the meaning of s.5F(2)(b).

18. Given these findings the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision.

19. The Tribunal notes that its findings are based on the evidence of the applicant, who was credible and truthful in the information she provided to both the Department and to the Tribunal.  The Tribunal finds the applicant was committed to the relationship with her sponsor, that her sponsor was not committed to the relationship at the relevant times, and that the applicant did suffer family violence but not at times when her relationship met the definition of a spousal relationship in s.5F(2). 

20. Therefore, the applicant does not meet cl.100.221(4).

21. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

22. The Tribunal invited the applicant to consider an application for Ministerial Intervention in these circumstances, in the resumed hearing on 4 May 2023.  The applicant did not make such an application. The Tribunal considers that this review contains a very compelling set of circumstances, the review applicant gave reliable evidence, was committed to the relationship, and has suffered family violence. The Tribunal acknowledges Australia’s policy in relation to zero tolerance of family violence.  

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

    Margie Bourke
    Member

    
    
    

    Attachment  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).