2003862 (Migration)

2003862 (Migration) [2024] AATA 1792 (15 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Jia (Jack) Li
CASE NUMBER: 2003862

MEMBER:Donna Petrovich
DATE:15 May 2024
PLACE OF DECISION: Melbourne
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) of Schedule 2 to the Regulations
·cl 820.221(3) of Schedule 2 to the Regulations

Statement made on 15 May 2024 at 1:50pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – genuine and ongoing relationship before family violence – incidents of domestic assault – parties divorced – claim of family violence – intervention orders – decision under review remitted
LEGISLATION
Family Law Act, 1975
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.21, 1.23
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 12 February 2020 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 13 May 2018 on the basis of her relationship with her sponsor. At that time, 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).
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. 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.
Background
The couple initially met at [a location in Suburb 1]. They developed a friendship and began a romantic relationship in July 2016.
Initially they maintained individual bank accounts. They eventually opened a joint bank account which was rarely used.
The applicant was studying and working at an [agency] for 20 hours per week. The sponsor was initially working in a factory in [specified roles]. Subsequently, he became involved in [another role]. They both pay for expenses using their own card.
On 15 October 2016 they moved into the house of the sponsor’s mother paying rent and expenses as the sponsor’s mother relies on Centrelink.
Just before their wedding, the couple moved into a property rented by the applicant.
[In] March 2018 the couple married and continued to live at her rental property as a married couple. The sponsor paid for the wedding and reception.
The couple would mainly go out to eat, but if they had time the applicant would cook. They shared expenses, went to the gym together and maintained friendships including connections with family members sharing meals (this is supported in evidence provided by witnesses).
The sponsor withdrew sponsorship on 4 July 2018 after he admitted to having an affair, but then wrote to the Department the following day retracting the sponsorship withdrawal. The couple undertook marriage guidance counselling. According to the delegate’s decision, their migration agent wrote to the Department advising that the couple’s relationship was going ok following ‘marriage consultation’.
The couple went to the gym together. The sponsor bought the applicant gifts of clothing, makeup and perfume. Together they went on road trips around Victoria and out for meals with friends. However, this all stopped when he admitted cheating on the applicant.
The applicant noticed the sponsor was on the telephone a lot and that he hid from her who he was talking to.
The sponsor accused the applicant of having affairs and did not allow her to have male friendships. Although he was the one who cheated and the applicant forgave him.
There were multiple incidents where the applicant was assaulted by the sponsor. The first incident was [in] June 2018. The applicant did not call the police because she did not want to get him in trouble, and she hoped that the sponsor would go back to being a loving husband. The applicant sought advice from the Women’s Help Line.
There were other incidents including one at the end of October 2018, where the applicant was assaulted after the sponsor broke into the house.
He also stalked the applicant at work. The sponsor tried to break into the nursing home where the applicant worked after hours. The attempted break in was noted in an incident report. The applicant’s supervisor gave evidence at the hearing regarding the incident.
There was a further incident [in] November 2018 at the home of a male friend. The police were called, the applicant sought an intervention order and the police filed a report.
The applicant suffered injuries from these assaults including, cuts, bruises and hair loss as the sponsor stood on her hair to restrain her. The applicant did not keep photographic evidence of her injuries. However, oral testimony from a witness at the hearing attested to the applicant’s injuries as they had witnessed her bruising and abrasions.
The applicant attended a psychologist. The psychologist’s report has been provided to the Tribunal.
The applicant now takes medication for anxiety and depression. She also suffers from insomnia. She has been given a Mental health plan and has undertaken 6 treatments and has 4 further treatments to attend.
The applicant fled her rental property, initially staying at the [a venue]. She was subsequently given emergency housing by the police.
Currently, the applicant lives in a share house with friends and is divorced from the sponsor.
The applicant has made a claim of family violence.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.211(2) of the Regulations. This is because the delegate was not satisfied that the applicant was the spouse or de facto of the sponsor as per s 5F and s 5Cb respectively.
As cl 820.211(2) of the Regulations was not satisfied according to the delegate, the applicant’s claims of family violence were not assessed under cl 820.221(3) of the Regulations.
The applicant appeared before the Tribunal on 15 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [three named witnesses].
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence.
The Tribunal received evidence that the couple were in an ongoing married relationship prior to the relationship breakdown resulting from family violence. The applicant claims that during the marriage she suffered family violence perpetrated by the sponsor.
The applicant provided compelling evidence at the Tribunal hearing, substantiated by hearing witnesses, regarding the nature of their relationship prior to its breakdown and the assaults.
Based on the evidence, the Tribunal is satisfied the couple were in a spousal partner relationship as per s 5CF of the Act and cl 820.211 of the Regulations, but that this genuine spousal relationship has now ceased in circumstances involving family violence.
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).
In the present case the applicant is seeking to establish family violence on the basis of evidence tested before a Court. Acceptable forms of court tested evidence as set out in reg 1.23, are: a court injunction under the Family Law Act 1975; an Australian Court order for the protection of the alleged victim; or a conviction or finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim. Where such evidence is provided, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence: reg 1.23(1).
A number of intervention orders have been supplied to the Tribunal in support of the applicant’s family violence claims against the sponsor partner. Listed below are the intervention orders that have been put in place against the sponsor to protect the sponsor.
Intervention Order Evidence
·     [November] 2018 Intervention Order taken out against the sponsor, at [Court 1] protecting the applicant. The sponsor was present at the Court;
·     [June] 2019 Intervention Order taken out against the sponsor, at [Court 1] protecting the applicant. The sponsor was present at the Court;
·     [April] 2019 Intervention Order taken out against the sponsor at [Court 1] protecting the applicant; The sponsor was not present at the Court;
·     [June] 2019 Interim Intervention Order taken out against the sponsor, at [Court 1], protecting the applicant. The sponsor was not present at the Court;
·     [February] 2019 Intervention Order taken out against the sponsor at [Court 1] protecting the applicant. The sponsor was present at the hearing as per the notes on the Intervention Order.
Other evidence has been supplied to the Tribunal including the following:
· 20 September 2019 Witness Summary Certificate Reference [number]
· Statutory Declaration by [Person A] relating to the sponsor stalking the applicant. It details the violence experienced by the applicant including threats to kill and threats to staff at her place of work.
The evidence supplied to the Tribunal in the form of the [Court 1] intervention orders, demonstrate that the Court has granted an injunction against the alleged perpetrator, the sponsor, for the protection of the alleged victim (being the applicant). The final intervention orders supplied to the Tribunal mean that cl 1.23(4)(a) is satisfied.
The majority of the intervention orders supplied indicate that the sponsor was present at the Court hearings in relation to intervention orders. Consequently, the Tribunal finds that cl 1.23(4)(b) of the Regulations is satisfied as the intervention orders were made with the sponsor present at the court. This indicates that the orders were only made after the alleged perpetrator (the sponsor) was given an opportunity to be heard or to make submissions as prescribed by cl. 1.23(4)(b) of the Regulations.
The interim intervention order made [in] June 2019, indicates that the sponsor did not attend the court, but it is addressed to him. There is no evidence before the Tribunal to indicate that the sponsor was not provided with an opportunity to attend the court hearing to present his case.
In relation to the intervention order dated [in]April 2019, whilst the sponsor did not attend the court hearing, the notations advise that he objected to the making of the order indicating that he did have an opportunity to present his case as required by the regulations.
The clinical psychologist report dated [in] November 2023 that has been supplied to the Tribunal indicates that the couple married [in] March 2018 and divorced around April 2021 when the ‘divorce order was certified [in] April 2021.’
A copy of the couple’s divorce certificate has not been supplied to the Tribunal.
The Tribunal is satisfied on the evidence that the applicant has experienced family violence as evidenced by the numerous final intervention orders that satisfy cl 1.23(4)(a) of the Regulations.
The presence of the sponsor at the court on the hearing dates indicates that he was provided an opportunity to present his case as required by cl 1.23(4)(b) of the Regulations. At the time when he was absent at the hearing [in] April 2019, the notifications on the intervention orders record his objection to the order being made. This evidences that cl 1.23(4)(b) is satisfied. In relation to the interim intervention order made [in] June 2019, there is no evidence before the Tribunal to indicate that the sponsor was not provided with an opportunity to attend the court hearing to present his case. Further, the Tribunal notes that this is only an interim intervention order, rather than a final intervention order as anticipated by the regulations.
The dates of the intervention orders evidence that the violence occurred during the marriage as required by cl 1.23(5) of the Regulations. The file indicates that the couple married [in] March 2018. There is an intervention order against the sponsor dated [in] November 2018, evidencing that the applicant was subject to the family violence 8 months into the marriage and whilst the marriage was still ongoing. Consequently, the Tribunal finds that cl 1.23(5) is met by the applicant.
The Tribunal finds that the family violence is taken to have occurred as prescribed under reg 1.23 of the Regulations.
The Tribunal concludes that the couple were in a genuine, spousal relationship as required by cl 820.211(2) at the time of application.
As the relationship between the couple has ceased in circumstances where the applicant has suffered relevant family violence committed by the sponsor during the marriage, the Tribunal finds that cl 820.221(3) of the Regulations is satisfied. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
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) of Schedule 2 to the Regulations
·cl 820.221(3) of Schedule 2 to the Regulations
Donna Petrovich
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
1.21 Interpretation
…
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.
…
violence includes a threat of violence.
…
1.23     When is a person taken to have suffered or committed family violence?
(1)For the purposes of these Regulations:
(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.

[2024] AATA 1792

15 May 2024

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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