2000852 (Migration)

[2024] AATA 3125

2000852 (Migration) [2024] AATA 3125 (10 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2000852

MEMBER:Kira Raif

DATE:10 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 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 3:15pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – relationship had ceased – applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship – credible witness – decision under review remitted           

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.21, 1.23,1.24, 1.25, Schedule 2, cls 820.211,820.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 January 2020 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Vietnam, born in [year]. She applied for the visa on 19 December 2017 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 10 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend [Ms A]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. Relevantly to this matter the primary criteria include cl 820.211 and 820.221 which require that at the time of application and decision, the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl 820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence.

6. Under reg 1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in reg 1.21. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14).

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

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

8. 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.

9. The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes.

10. 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).

11. The applicant provided to the Tribunal her own statutory declaration and declarations from a social worker and a psychologist. The Tribunal is satisfied that the evidence presented meets the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23. The applicant presented other evidence in support of her claim, including a letter from a GP and a statement from her friend. The Tribunal has had regard to these materials.

    Has the applicant suffered family violence?

12. The applicant told the Tribunal that the relationship with the sponsor ended in August 2022. The applicant states that the sponsor gambled and beat her up and she left the family home and went to live with a friend. She did not seek professional help at the time.

13. The applicant told the Tribunal they married in 2017 and initially, the marriage life was happy until 2022. In January 2022 some people came to their house to chase a debt of over $10,000 and she and the sponsor had an argument. It was only at that time that she found out that the sponsor was addicted to gambling. She encouraged him to quit which he promised to do. In July 2022 the sponsor started to demand money from her but she did not agree, so they got into arguments and he smashed her phone and threatened to harm her. The relationship became strained and the sponsor prevented her from contacting other people. On 30 July 2022 was the second time he demanded money and she refused, so the sponsor beat her with his belt. The applicant states that she did not refer these incidents to the police because she thought the sponsor might change and if she reported him, he might be arrested. She also states that she was feeling embarrassed. The applicant states that after that incident they did not speak to each other. About a week later, the sponsor got home late and demanded intercourse. She did not agree and he forced her. The applicant states that she felt ashamed and insulted and left the family home. She collected her things from the house in September and on that occasion she was strangled and beaten. She was encouraged by a friend to see a doctor which she did a week later. When asked why she did not report the matters to the police, the applicant stated that a part of her wanted to reconcile as this was her second marriage and she was hoping the relationship could continue. She states that the gambling addiction occurred quite recently and until then the relationship was quite good. The applicant states that they had formally divorced earlier in 2024.

14. The applicant told the Tribunal that at the time when these incidents happened, she saw a community psychologist and was referred to a women’s group and received advice. She continues to see a psychologist about twice a year and she also sees her GP for medication as she has sleep problems. She does not see a social worker.

15. The Tribunal generally found the applicant to be a truthful witness and accepts her evidence. The Tribunal accepts that the events described by the applicant did occur. The Tribunal accepts that these caused the applicant to be fearful and apprehensive about her well-being. The Tribunal accepts that these constituted family violence.

16. The delegate was not satisfied that the applicant was the spouse of the sponsor. The applicant told the Tribunal that the relationship has been in existence for over five years and they regularly visited the sponsor’s family in Australia and attended other social activities together. The sponsor also regularly spoke to her children overseas. They made plans for their future together, which included having a child.

17. [Ms A] gave oral evidence to the Tribunal and said that she saw the couple in the beginning of the marriage. She observed the relationship to be a good and caring one. [Ms A] states that when the applicant left the family home, she came to her home and she saw bruising on the applicant’s body and the applicant told her that she was beaten by her husband.

18. The Tribunal acknowledges a large volume of documentary evidence was submitted with the primary application and while the delegate did not accept that evidence, no specific concerns had been identified in the primary decision. The Tribunal acknowledges that there was evidence relating to the couple sharing their finances and using their bank account for daily expenses. There was photographic evidence of social activities and statements from third parties. There was correspondence sent to the same address, rent receipts and other materials. The applicant presented additional written materials to the Tribunal concerning aspects of her relationship with the sponsor. Having regard to the totality of the evidence before it, the Tribunal is satisfied that the applicant was the spouse of the sponsor before the relationship broke down. The Tribunal is satisfied the applicant meets cl. 820.211(2)(a).

19. The Tribunal is also satisfied, for the purposes of reg 1.23, that 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.

20. The Tribunal finds that the relationship between the applicant and the sponsor has ceased. The Tribunal finds that the applicant has experiencing family violence. The Tribunal finds that the applicant meets cl. 820.221(3).

    Conclusion

21. 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.

    DECISION

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

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

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

    Kira Raif
    Senior Member