2008395 (Migration) - [2021] AATA 3521

2008395 (Migration) [2021] AATA 3521 (1 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2008395
MEMBER:Margie Bourke
DATE:1 July 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:
·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations.

Statement made on 01 July 2021 at 5:55pm
CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – applicant has suffered family violence committed by the sponsor – relationship with sponsor has ceased –statutory declaration from the applicant meets the requirements of r.1.25 – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359AA
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 1.25; Schedule 2, cls 100.211, 100.221
CASES
El Jejieh v MICMSMA [2020] FCA 1103
Dang v Minister for Immigration [2016] FCCA 1426
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 Immigration on 31 July 2017 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 18 March 2015 on the basis of his relationship with his sponsor, [Ms A]. At that time, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 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.100.221 which requires 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.100.221(4)(b), (c)(i). The applicant claims this occurred in this case.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because in the decision record dated 31 July 2017, the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor as defined in s.5F or s.5CB of the Act prior to the relationship ceasing, and therefore the applicant did not meet the requirements of cl.100.211(4)(b).
The applicant applied for review of the Department decision, and a decision of the Tribunal differently constituted dated 9 October 2019 affirmed the Department decision. By order of the Federal Circuit Court of Australia dated 14 May 2020 the matter was remitted by consent back…

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.

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Details

Case: [2021] AATA 3521
Decision Date: 1 July 2021

CaseChat Overview and Summary

This matter concerned an application for a Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The applicant claimed that their relationship with the visa sponsor had ceased and that they had suffered family violence at the hands of the sponsor. The Tribunal was required to determine whether the applicant met the relevant criteria for the visa, particularly in light of the cessation of the relationship and the allegations of family violence.

The primary legal issues before the Tribunal were whether the applicant's relationship with the sponsor had ceased, and whether the applicant had suffered relevant family violence committed by the sponsor, as contemplated by the Migration Regulations 1994. The Tribunal also considered the evidentiary requirements for establishing a non-judicially determined claim of family violence and the impact of the cessation of the spousal relationship on the assessment of these claims. The Tribunal referenced the case of *El Jejieh v MICMSMA* [2020] FCA 1103 regarding the demonstration of holding a Subclass 309 visa.

The Tribunal found that the applicant had provided sufficient evidence to establish that the spousal relationship had ceased and that the applicant had suffered relevant family violence. The Tribunal was satisfied that the applicant resided with the sponsor as her spouse for a period, and that the relationship, though troubled, continued during that time. Crucially, the Tribunal concluded that the applicant met the requirements of cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations, which relate to the cessation of the relationship and the suffering of family violence.

Consequently, the Tribunal remitted the application for a Partner (Migrant) (Class BC) visa for reconsideration. The remittal was made with the direction that the applicant be taken to meet the specified criteria for a Subclass 100 visa, allowing for the assessment of any remaining criteria for the grant of the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 [Ms A] the visa sponsor has ceased, and he has been the victim of family violence. The Tribunal is satisfied that the following information contained in the Department decision record, and confirmed by the applicant and his representative in relation to the following dates, is correct. The applicant applied for the partner visa on 18 March 2015, and was granted a subclass 309 visa on 25 March 2016. The applicant arrived in Australia on [date] July 2016, and the relationship broke down within three months in mid October 2016. The sponsor notified the Department the relationship had broken down and her sponsorship was withdrawn on 25 October 2016. The applicant’s representative advised the Department this information was correct.Ongoing spousal relationship which has ceased In support of the application for the visa the applicant provided the application form which was lodged online, the sponsor’s Australian citizenship certificate, employment and tax documents of the sponsor, the sponsor’s divorce order dated July 2014, the applicant’s translated birth certificate, the applicant’s completed bachelor of science document dated 2003, a statutory declaration from the sponsor’s cousin, a statutory declaration from the sponsor sister-in-law, statements from the sponsor, wedding photos, a completed form 80, photographs, travel documents, international call records, Gmail records, the sponsor’s phone records and identity documents. In the information provided to the Department after the relationship broke down, the applicant provided medical reports and counsellor reports which also referred to the marital relationship between the applicant and the sponsor. The applicant provided the Tribunal with videos of the wedding between the applicant and the sponsor. The eight discs of material were provided to the Tribunal the day before the hearing. I accept that this evidence establishes that the wedding was a large and flamboyant function. The Tribunal has also considered the judgement in the case of El Jejieh v MICMSMA [2020] FCA 1103, in which the Federal Court at paragraph 205 states “if the applicant establishes that he or she held a Subclass 309 visa at the time they entered Australia and continue to hold that visa, in a sense that demonstrates that they were the spouse of an Australian citizen. But they do not need to demonstrate that fact separately. They need only demonstrate that they held and continue to hold a Subclass 309 visa.” In this review the applicant continued to hold a Subclass 309 visa, during the relationship between the applicant and the sponsor which was relatively short lived in Australia. The evidence to support the relationship between the applicant and sponsor in Australia was limited but not negative. I am satisfied that the applicant resided with the sponsor as her spouse in the home rented by her from 26 July 2016 to mid October 2016. I am satisfied that the spousal relationship continued although the relationship was fraught with difficulty. I accept the evidence of the applicant that the relationship was severely troubled, and the difficulties were exacerbated by his inability to find employment.

Decision

Reasons for decision

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.100.221(4)(b) and (c). 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 (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations.Margie BourkeMemberATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 19941.21 InterpretationIn this Division:independent expert means a person who:(a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and(b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.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.statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.violence includes a threat of violence.…1.23 When is a person taken to have suffered or committed family violence?(1)For these Regulations, this regulation explains when:(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.

Ratio Decidendi

Legal Principle Established

The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations.Margie BourkeMemberATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 19941.21 InterpretationIn this Division:independent expert means a person who:(a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and(b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.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.statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.violence includes a threat of violence.…1.23 When is a person taken to have suffered or committed family violence?(1)For these Regulations, this regulation explains when:(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.