2005165 (Migration)

[2023] AATA 4737

2005165 (Migration) [2023] AATA 4737 (27 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Jholl Hargobind Singh (MARN: 9252124)

CASE NUMBER:  2005165

MEMBER:Donna Petrovich

DATE:27 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the first named applicant (the primary applicant) meets the following criteria for a 820 visa:

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

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

The Tribunal finds that as the first named applicant (the primary applicant) meets the above criteria, the secondary applicants meet cl 820.321 for the visa grant.

Statement made on 27 November 2023 at 10:52am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – genuine relationship prior to marriage breakdown – family violence claim – evidence tested before a court – Family Violence Final Intervention Order – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23; Schedule 2, cls 820.211, 820.221, 820.321

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 2 March 2020 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the primary applicant) applied for the visa on 16 January 2017 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).

3. 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.

4. The delegate refused to grant the visas on the basis that the applicant did not meet cl 820.211(2)(a) at the time of application.  This is because the delegate was not satisfied that the applicant and sponsor were in a genuine and continuing relationship, residing together as a genuine married couple.  As cl 820.211(2)(a) was not satisfied, the delegate concluded that that time of decision criteria in cl 820.321 was not met.

5. The applicants appeared before the Tribunal on 21 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from secondary applicants, [Ms A] (daughter from first marriage) and [Mr B] (son from first marriage), [Ms C] (a neighbour) and [Ms D] (friend from Cambodia now living in Australia).

   Background

6. The primary applicant initially came to Australia in May 2015.  She brought her daughter to Australia to visit her father ([Mr E]) and continue her education.  In Australia her daughter commenced year 9 education. The daughter, and her mother lived with the primary applicant’s first husband, as he was the father of the primary applicants children (son and daughter), they were living with him at this time, until it became clear that this man was having a relationship with another woman.

7. [Mr E] hid his telephone conversations from his wife.  He told his wife that the lady with whom he was communicating was his friend. He would remove himself when he talked to his girlfriend, was secretive and concealed the relationship.

8. The primary applicant’s relationship with her first husband broke down when she returned to Cambodia in July 2016.  She broke up with him over the telephone. Her daughter stayed in Australia, continuing her education. The primary applicant divorced her first husband, [Mr E], [in] December 2016.

9. The primary applicant visited Australia on 3 occasions with her son, visiting her daughter.  She would stay at her former husband’s home with her daughter and son, and he would go to his girlfriend’s house. The primary applicant supported herself (and did not receive financial support from her first husband) by renting out rooms in her Cambodian home to boarders.

10. His brother, [Mr F] (sponsor) was kind to his sister- in- law.  For example, the sponsor picked her up from the airport, took her shopping and generally helped her as well as the children. The sponsor and primary applicant knew each other well from family functions and got along well.

11. They developed a relationship and were married [in] January 2017.

12. Friends and family attended their wedding.  Afterwards, they had a wedding reception at [location]. [Mr F] (the husband and sponsor) paid for the wedding and reception.

13. Both the sponsor and primary applicant worked at [a specified] factory.  They also lived together with the secondary applicants, until there was an altercation where the sponsor physically assaulted the primary applicant.

14. The relationship of the primary applicant and sponsor broke down at that time         

15. The applicants were represented in relation to the review.

16. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and that she has been the victim of family violence.

18. The Tribunal was provided with substantial evidence regarding the couple’s relationship by the primary applicant’s children (the secondary applicants).  The secondary applicants told the Tribunal of their relationship with the sponsor, who took care of them. They gave details of their lives together, and the relationship with their step-father. They also provided insight into the day- to- day life of their mother and the sponsor, including how the couple had shared a good relationship, helping each other in daily life. 

19. They spoke fondly of their family time and their activities, expressing sadness that the couple’s relationship had broken down under the circumstances of family violence.

20. The secondary applicant, [Ms A], witnessed a family violence incident where her mother’s hand was hit and injured by the sponsor.  She told the Tribunal that she was shocked and upset that the sponsor had injured and upset her mother in this way.

21. [Ms A] explained that initially she lived with her biological father when she arrived in Australia and had attended secondary school, until her mother and brother arrived in Australia.  On the third visit to Australia, her mother and the sponsor formalised their relationship and married [in] January 2017.  She and her other family members had attended the wedding.

22. The Tribunal has considered the evidence given during the hearing by the secondary applicant, [Ms A].  The Tribunal finds that the evidence is credible, consistent with existing evidence, and provides an insight into the couple’s family life prior to the relationship breaking down.  It reveals that the couple had a relationship that was genuine and ongoing. The Tribunal places some weight in favour of the primary applicant in this regard.

23. Evidence was also provided at the hearing by the neighbour and friend, [Ms C].  She told the Tribunal that she had lived next door to the couple for two years prior to the relationship ending.  She provided testimony that the couple had lived together continuously during this time.  She explained that she had witnessed their daily activities, including their coming and going together from work to home, shopping and that she often saw them at community events together.  She would sometimes go into their home for brief visits and told the Tribunal that they were very kind and helpful neighbours, who assisted her when she needed help as she lived alone.  The Tribunal accepts the evidence provided by [Ms C] on her observations of the ongoing nature of couple’s relationship prior to the relationship breaking down and places some weight in favour of the primary applicant.

24. [Ms D] also appeared at the hearing to give evidence.  She told the Tribunal that she had been a friend of the primary applicant for 9 years and knew her previously from Cambodia.  She confirmed that she had attended the couple’s wedding.  She often saw them socially at parties, in their own home and in the community.  She explained that she was saddened that she could not provide additional support to her friend after the marriage breakdown during Covid 19 Lockdown.  The witness also expressed concern for the secondary applicants if forced to return to Cambodia, as they had established their lives in Australia (where they had spent most of their childhood and education).

25. The Tribunal has considered the time that the witness has known the primary applicant and her regular visits to the couple’s home. This witness attended the couple’s wedding and participated in Cambodian community events with them.  She socialised with them and witnessed their day- to- day lives together. The Tribunal finds the evidence confirms the nature of the relationship (prior to the marriage breakdown) as ongoing and genuine, and places some weight in favour of the primary applicant.            

26. In May 2020 the couple’s relationship broke down when they argued over $65,000 that the sponsor had used for their home deposit.

27. There were two other incidents of alleged family violence which involved verbal abuse and pushing.  The primary applicant told the Tribunal that she had put up with it as she loved her husband and wanted the relationship to work. They had intended to buy a home together and had discussed having a child.  

28. There was a dispute between them as he had transferred money from her account to his own. The primary applicant had been gifted $130,000 from her parents.  The money was to assist the primary applicant to establish herself in Australia, with her new husband and children.

29. The primary applicant told the Tribunal that he had taken this money and not used it as a deposit for the house that they intended to buy together. The primary applicant told the Tribunal that she did not know what had happened to the money and had been unable to recoup it from the sponsor.

30. He had on this occasion come home and demanded money from the primary applicant, including paying him $500 per week.  The primary applicant paid the money to the sponsor as she was concerned for her safety and that of her children.

31. After the family violence had occurred the sponsor took his possessions, moved out of the house and the relationship ceased from this point on the 4 May 2020. The primary supplicant called the police on this occasion and an intervention order was placed on the applicant sponsor dated 30 June 2020. 

32. There had been at least two other alleged incidents of family violence experienced by the primary applicant prior to this.  She told the Tribunal that she accepted this as normal and initially put up with this behaviour.

33. The Tribunal has considered the evidence, finding it consistent with previous written material provided by the primary applicant and the hearing testimony of the secondary applicants.  Therefore, the Tribunal places some weight in favour of the primary applicant. 

34. The Tribunal having read submissions and heard from witnesses, is satisfied that the evidence is consistent, credible and provides insight into the couple’s relationship which lasted 7 years (prior to the family violence incident which led to the relationship breakdown).

35. On the basis of the evidence, the Tribunal is satisfied the couple were in a genuine partner relationship and that this relationship has ceased.

36. 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).

37. 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).

38. The primary applicant provided the Tribunal a copy of the Family Violence Final Intervention Order put in place by Victoria police on 30 June 2020, following her report to the police of the 4 May 2020 family violence incident (witnessed by her daughter).  The after-effects of the family violence incident were experienced the primary applicant’s son who was playing ex-box in his room at the time.  He had become aware of his mother’s distress immediately after the incident.

39. In addition to the family violence and intervention order documents, the Tribunal has also received written statements from [the applicant], [Ms A], as well as form 888s from [Ms C] and [Ms D]. The Tribunal considers that the evidence is consistent and credible.  The police statements and Court documents confirm the family violence experience by the primary applicant perpetrated by the sponsor.

40. The Tribunal is satisfied that a Court Order was made against the sponsor for the protection of the primary applicant in relation to violence that occurred whilst the parties were in the relationship, after the sponsor had had an opportunity to be heard or otherwise make submissions to the Court. Therefore, family violence is taken to have occurred under reg 1.23 of the Regulations.

41. The Tribunal finds that the couple at the time of the visa application were in a genuine and committed marital relationship and consequently cl 820.211(2)(a) is satisfied by the primary applicant.

42. As the relationship between the couple has ceased, and the applicant has suffered relevant family violence committed by the sponsor, it is the finding of the Tribunal that the primary applicant meets the requirements of cl 820.221 (3) of the Regulations.

43. Given the findings that cl 820.211(2) and cl 820.221(3) is met at the time of the visa application and time of the Tribunal decision respectively, it is the conclusion of the Tribunal that the secondary applicants satisfy cl 820.321 at the time of the Tribunal decision.

44. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

45. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the first named applicant (the primary applicant) meets the following criteria for a 820 visa:

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

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

46. The Tribunal finds that as the primary applicant meets the above criteria, the secondary applicants satisfy cl 820.321 for the visa grant.

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.