2003707 (Migration)

[2022] AATA 2523

2003707 (Migration) [2022] AATA 2523 (6 June 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2003707

MEMBER:  Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:          6 June 2022 at 11:08 am (VIC time)

DATE OF WRITTEN RECORD:                22 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Statement made on 22 June 2022 at 9:00am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing relationship – relationship ceased and non-judicially determined claim of family violence – verbal abuse, threats and interim intervention order – statutory declarations by applicant and witnesses and statements from specified professionals provided – decision under review remitted

LEGISLATION  

Migration Act 1958 (Cth), ss 5CB, 65, 376
Migration Regulations 1994 (Cth), rr 1.09A(3), 1.23, 1.24(b), 1.25, Schedule 2, cl 801.221(2), (4), (6)(b), (c), (e)(i)

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 February 2020 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under the Migration Act 1958 (Cth) (the Act).

1. At the hearing on 6 June 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The tribunal notes that this is an application for a review of a decision made by a delegate to the Minister for Home Affairs and that decision was on 18 February 2020. That was a refusal to grant the applicant a Partner (Resident) Class BS visa under section 65 of the Migration Act. The applicant applied for the visa on 15 February 2016 on the basis of her relationship with her sponsor. And at that time Class BS contained only one subclass, and that was the Subclass 801 Partner. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations.

1. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants to the visa need satisfy only the secondary criteria. The delegate refused to grant the visa on the basis that the applicant did not satisfy clause

   801.221. The delegate made the finding that the prescribed types of evidence as per sub- regulation 1.24(b) for a finding of family violence were not present. Based on what was outlined the applicant, to the delegate’s mind, had not provided at least two pieces of evidence to support a family violence claim as specified in the legislative instrument IMMI12/116 for the purposes of sub-regulation 1.24(b).

1. The delegate considered that the applicant had been afforded a reasonable time to provide these documents and the delegate found that they were not obliged to defer their decision any further because the information may be forthcoming in the future. Therefore, the delegate found that the requirements of 801.221(4) and (6) of the Regulations were not met and that the applicant did not satisfy any of the alternative sub-classes within clause 801.221, and therefore the applicant did not meet the grant of the Subclass 801 visa.

1. The applicant has appeared before the tribunal via video and this is at the applicant’s request, and the tribunal has accepted that for reasons of convenience and probity, a video hearing is appropriate. The tribunal also had a witness to be heard in the hearing as well. They could not be reached; however the witness, [Mr A], has provided a written declaration, an 888 form, which the tribunal has given consideration to. The applicant was not represented and represented herself in the hearing.

1. The questions that arose in this case are whether the applicant and the sponsor were ever in a genuine and continuing de facto relationship, and if so whether the applicant is a victim of family violence committed by the sponsor during the relationship within the meaning of the Regulations. Before considering whether the applicant has suffered relevant family violence in accordance with the provisions of clause 801.221(6)(e)(i), the applicant is still required to satisfy the decision maker that she would meet the requirements of clause 801.221(2) or (2)(a), except that the relationship between the applicant and the sponsoring partner had ceased.

1. This, in turn, requires the applicant to show that she is the de facto partner of the sponsoring partner and that they were in a genuine and continuing relationship. The question is whether the applicant and the sponsor were in a genuine and continuing de facto partner relationship as defined in section 5CB of the Act. The tribunal has given consideration to the written

evidence provided by the applicant and her oral evidence and has come to the conclusion the parties commenced their relationship in 2014 and that this relationship continued for some four years, and the relationship ended after family violence occurred within it. The tribunal is satisfied that the parties were living and cohabiting together in a de facto relationship.

1. Relevantly, clause 801.221(2)(c) requires that at the time of this decision the applicant is the spouse or de facto partner of the sponsoring partner who must be an Australian citizen or Australia permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as spouse or de facto partner of the applicant. In the present case, the applicant claimed to be the de facto partner of the sponsor who is an Australian citizen who was identified in the related Subclass 820 visa application. On the evidence before it, the tribunal is satisfied the sponsor is the sponsoring partner of the applicant.

1. “De facto partner,” is defined is section 5CB of the Act which provides that: “A person is in a de facto relationship with another person to whom they are not married if they had a mutual agreement to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together or do not live separately and apart on a permanent basis, and the couple are not related by family,” section 5CB(2).

1. Claims and findings

1. Informing an opinion as to whether they are in a de facto relationship, consideration must be given to all the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the parties’ household and their commitment to each other as set out in rule 109A(3) of the Regulations, and each of specific matters in rule 109A(3) are effectively questions which must answered. On this aspect, the tribunal considers all the evidence individually and cumulatively, and is satisfied the parties were in a de facto relationship at the time by section 5CB of the Act, and that this relationship ceased.

1. The issue that arises on the evidence in this case is whether the applicant suffered family violence - the tribunal also turns its attention to the necessary requirements to show family violence in this situation, and the tribunal notes that the two relevant items as mentioned in the IMMI 12/116, a medical certificate from [Dr B], of 24 April 2018 which confirms the presence of family violence between the sponsor and the applicant. The second satisfying aspect to the IMMI is a letter of [Service provider] of 3 July 2020 from a specialist family violence practitioner signed [Ms C], which the statement states that the applicant self-referred to the service on 17 March 2020 for a specialist family violence support. She has experienced significant family violence perpetrated by her ex-partner, [Ms D], throughout their relationship.

1. She disclosed that she and [Ms D] started their relationship in July 2014 and [Ms D] began perpetrating family violence against [the applicant] in November 2015. The applicant disclosed that the violence included verbal abuse, threats to harm, threats of suicide, use of immigration status to control the applicant, and physical abuse. The applicant left the share home in June 2018 due to safety and the relationship ended. There was an interim intervention order from or on behalf of the applicant, with [Ms D], the sponsor, listed as the respondent.

1. The intervention order was not made final, and ultimately for other reasons the applicant decided not to pursue a final intervention order and women’s service, [Service provider], identified the behaviours as actions perpetrated by the sponsor as reported by the applicant which are consistent with patterns of family violence. And therefore tribunal comes to the conclusion that there is both a medical report and a letter on a letterhead from a women’s refuge or family violence crisis centre and these two types of evidence are sufficient to meet the requirements of the relevant IMMI for a non-judicially determined claim of family violence.

1. There is also a statutory declaration made under Regulation 1.25, and this is a relevant declaration made by the applicant detailing the family violence that she has experienced. And the tribunal finds that all of these requirements have been met to establish the presence of family violence. And the tribunal then has to turn to the other issue for the case as to whether a genuine de facto relationship existed, and refer to the mandatory requirements under Regulation 109(a) for de facto relationship. Firstly, if whether there are financial aspects of the relationship. And the tribunal has received evidence from the applicant that the parties had a joint bank account that they contributed savings together and used that joint bank account for household expenses.

1. The tribunal accepts that the parties did not have loans at that time or other direct liabilities, but they did share day to day household expenses. The tribunal notes that the application for the temporary visa, the 820 visa, was accepted by the Department and there was no need to appeal that decision. The tribunal finds that the level of financial aspects in the relationship between the parties was fitting in the circumstances and what could be expected and gives this factor weight.

1. The tribunal assesses the nature of the household and finds that there was no joint responsibility for the care or support of children. The tribunal finds that the parties lived together at different addresses in Melbourne, and they provided early on lease documents where they are noted as the renters. The tribunal has queried their renting arrangements with the applicant and found that the parties lived together. The applicant gave a clear description of the household duties, how they did the housework, who was responsible for what particular task, and the tribunal finds that this was shared between the parties, and finds that it was appropriate in the circumstances and gives this factor weight.

1. The tribunal examined the social aspects of the relationship, and whether the persons represented themselves to other people as being married to each other, or in a de facto relationship with each other, and the opinions of the friends and acquaintances about the relationship. The tribunal notes that there are numerous declarations on file from friends and associates of the parties, and the tribunal was prepared to take oral evidence from [Mr A], a mutual friend, but was unable to reach him, however his form 888 declaration is sufficient to show credibility to the tribunal, and the tribunal accepts that there are a number of other witnesses who have statutory declarations attesting to the genuineness of the relationship. For example, [Mr E], has seen many shared posts, photos and memories and Facebook displays between the applicant and her partner, and is also aware of the difficulties which the parties have. The tribunal notes that there is extensive social recognition and family recognition and accepts the applicant’s evidence that the parties’ met each other’s family, the applicant was well aware of her partner’s family had met her grandparents interstate, and the parties had also travelled to France, which is the home origin country of the applicant. The former sponsor had met the applicant’s family.

1. The tribunal has come to the conclusion that social activities were undertaken and there was social recognition, which is a fitting description of and in keeping with a genuine de facto relationship and gives this factor weight. In terms of the parties’ commitment to one another, the tribunal notes the duration of the relationship was some four years. The tribunal finds that the parties lived together for the entire period, except for two very short breaks in which there was a ‘time out’ style arrangement for the applicant, which was necessary due to conflict in the relationship. However, the tribunal finds that the relationship was not broken at any point, and the parties continued to make contact with one another and attempted to repair their relationship, which was ultimately unsuccessful.

1. The tribunal has discussed companionship and emotional support between the parties, and accepts that there has been convincing evidence on the part of the applicant that the parties’ comforted on another in emotional difficulties, that the sponsor had had some family trauma in her background, that her family had had a broken experience when the parents’ divorced, and that the sponsor was in need of emotional support. The tribunal found the descriptions of stressors on both the applicant and the sponsor were genuine and fitting, and the tribunal found that the parties drew strength from one another and saw the relationship as a long term relationship.

1. Therefore, with all of those factors in mind, the tribunal finds that there was a genuine and continuing de facto relationship between the parties and the tribunal finds that this continued up until the end of the relationship. The tribunal finds that overall that there was a de facto relationship between the parties, the tribunal is satisfied that this is the case and has examined all of the evidence individually and cumulatively. The tribunal has come to the conclusion that the relationship is within the meaning of the definition. And, indeed, that the claim of family violence has been made under the Regulations as earlier described, with the appropriate statutory declaration and the reports of the medical practitioner and the women’s refuge.

1. Therefore, the tribunal is satisfied that the evidence presented meets the requirements of rule 1.24. And, as such, a non-judicially determined claim of family violence has been made under rule 1.23. The tribunal is satisfied that the sponsor, who is an Australian citizen, was the sponsoring partner of the applicant. The tribunal is satisfied the applicant would continue to meet all of the requirements of clause 801.221(2), except that the relationship between the applicant and the sponsoring partner has ceased, and the applicant has suffered family violence committed by the sponsoring partner.

1. As a result, the applicant meets the requirements of clause 801.221(6)(b) and (c) of Schedule 2 to the Regulations. The tribunal notes for the sake of completeness that there was a s.376 certificate on the departmental file. Unfortunately this particular certificate was not dated from the document on the Department’s file. That being the case, it is not released to the applicant, but the tribunal notes for completeness that the folios referred to are in fact correspondence from the applicant herself to immigration and include emails to police in relation to recording and other information that she herself is well-aware of along with a request for payment from a trades organisation in relation to fixing a wall and painting, which was sent in response to a fracas which occurred at the home of the parties.

1. All of this information is known to the applicant and does not prejudice their case, and was discussed and released with these documents.

1. The tribunal makes the following decision.

DECISION

1. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

   · cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations

   Justin Meyer Member