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

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).
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).
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1922326 (Migration)

Details

AGLC: 1922326 (Migration) [2023] AATA 2234
Case: [2023] AATA 2234
Decision Date: 19 May 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The applicant claimed that the relationship with the sponsoring partner had ceased due to family violence, and sought to rely on specific criteria under cl.100.221(4) of the Migration Regulations 1994. The Tribunal was required to determine whether a genuine spousal relationship existed between the applicant and the sponsor at the relevant times, and whether the applicant met the criteria for claiming family violence exceptions to the relationship cessation.

The Tribunal considered the legal issue of whether the relationship between the applicant and the sponsor met the definition of a spousal relationship under s.5F(2) of the Migration Act 1958, particularly the requirement of a mutual commitment to a shared life to the exclusion of all others. It also examined whether the applicant satisfied the conditions under cl.100.221(4), which requires the relationship to have ceased due to family violence committed by the sponsor after the applicant first entered Australia on a Subclass 309 visa. The Tribunal noted that COVID-19 concessions were not applicable in this case.

The Tribunal reasoned that based on the applicant's own evidence, the relationship ceased to meet the definition of a spousal relationship from January 2018, due to the sponsor's infidelity and other conduct. As the applicant did not enter Australia on the Subclass 309 visa until February 2018, the relationship had already ceased to meet the required definition at that point. Consequently, the Tribunal found that the applicant could not satisfy the criteria under cl.100.221(4)(c) as any alleged family violence occurred after the relationship had already ceased to be a spousal relationship. The Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEBackground information and circumstances relevant to the review 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. 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. The following dates are relevant to information in this review: – 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. The applicant lodged the application for the subclass 309 and subclass 100 visa offshore on 20 July 2017. The applicant returned to Australia [in] October 2017 as the holder of a tourist visa. The applicant departed Australia [in] January 2018. 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. 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. 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.

Decision

Reasons for decision

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) 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 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. 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.

Ratio Decidendi

Legal Principle Established

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