2112830 (Migration) - [2025] ARTA 474

2112830 (MIGRATION) [2025] ARTA 474 (5 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2112830

Tribunal:Senior Member A Murphy
Place:Melbourne
Date: 5 February 2025
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa
Senior Member A Murphy

Statement made on 5 February 2025 at 5:07pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – relationship ceased –– claim of family violence has not been established – a non-judicially determined claim of family violence had not been made under regulation 1.23 – strong compassionate circumstances – Australian citizen partner and child – Ministerial referral – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 376
Migration Regulations 1994, rr 1.22, 1.23, 1.24, Schedule 2, cls 820.211, 820.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 September 2021 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 14 March 2017 on the basis of his relationship with his 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.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.221 because his relationship with the sponsor had ceased and he did not meet any of the other criteria set out in cl 820.211.
The applicant appeared before the Tribunal on 23 January 2025 to give evidence and present arguments. The Tribunal also received oral evidence from his partner, Ms [A].
The applicant was represented in relation to the review, but his representative did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CERTIFICATE ISSUED UNDER SECTION 376 OF THE ACT
The Departmental file contains a certificate issued under section 376 of the Act dated 15 October 2021 stating that disclosure of the information identified in the certificate would be contrary to the public interest because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.
Where a certificate is issued under s.376, the Tribunal may have regard to any matter contained in the document or the information and, if it thinks it appropriate to do so, disclose any matter contained in the document or the information to the applicant or any other person who has given oral or written evidence to the Tribunal.
The s.376 certificate dated 26 April 2021 appears to be valid on its face, being electronically signed and dated and specifying a public interest reason as to why it should not be disclosed. At hearing I provided the applicant with a copy of the certificate, explaining that the substance of the information subject to the certificate had already been disclosed to him by the delegate and inviting his submissions as to the validity of the certificate, either orally at hearing or in writing in the seven days following the hearing. The applicant did not make any submissions as to the validity.
It is apparent from the documents discussed below that the applicant is already aware of the substance of the information contained in the certificated document, because his submission to the Tribunal dated 7 October 2022 makes reference to that material. The Tribunal notes that the applicant acknowledges his relationship with the sponsor has ended and that the contents of the document are not otherwise relevant to the question before the Tribunal, which is whether the applicant has made a valid, non-judicially determined claim of family violence.
In these circumstances the Tribunal does not consider it necessary to exercise its discretion to disclose any further details of the certificated information.
BACKGROUND TO THE REVIEW
In the visa application, the applicant states that his relationship with the sponsor commenced in 2016 and they married [in] January 2017 as evidenced by the marriage certificate contained on the departmental file.
On 20 May 2019, the Department was notified that the applicant’s relationship with his sponsor had ceased.
On 17 April 2020, the Department wrote to the applicant inviting him to comment on the information that the relationship between himself and his sponsor had ended and his sponsor had withdrawn their sponsorship. That letter also advised him that there were some circumstances in which he may continue to be considered for the grant of the visa, even if the relationship between the applicant and the sponsor had ended.
Those circumstances were stated to be where the sponsoring partner has died; where the applicant or a family member had suffered family violence committed by the sponsoring partner; or where the applicant and the sponsoring partner shared custody, access or maintenance obligations in respect of a child.
The delegate’s decision records that the applicant did not respond to that invitation to comment. The delegate found that the applicant was no longer the spouse of the sponsor; that there was no evidence that the sponsor had died; that family violence had occurred or that there was a child of the relationship.
CLAIMS AND EVIDENCE SUBMITTED IN THE REVIEW
Before the Tribunal the applicant did not dispute that his relationship with the visa had ceased. He gave evidence that he had in fact responded to the Department’s invitation to comment, but his former migration agent failed to send his response on to the Department. In light of the statutory declaration dated 17 May 2020 that has been provided to the Tribunal, I accept that to be true.
The applicant first raised his claims of family violence in documents lodged with the Tribunal in October 2022. In the statutory declaration dated 17 May 2020 he provided details of the deterioration of his relationship with the sponsor and the family violence he claims to have experienced during the marriage. He advised that he now had a nine-month-old child from his new relationship, providing a birth certificate for that child and a statutory declaration from his current partner in which she details the development of their relationship and her observations of the sponsor’s behaviour. In that statutory declaration he details the deterioration of their relationship commencing 6 to 8 months after their marriage and the family violence he claims to have experienced.
In a further statutory declaration dated 7 October 2022 and accompanying submission the applicant provided further details of the end of his relationship with the sponsor, including that the sponsor was demanding money in exchange for information requested by the Department about the visa application. He also attached text correspondence between himself and the sponsor in which she asks him to put money in their account. In a message from July 2019, the sponsor appears to suggest that if the applicant does not pay her money each week she will withdraw her sponsorship.
In that statutory declaration the applicant records that his marriage to the sponsor came under stress because of her untreated mental illness and noted that in 2018 the sponsor told him that a family member of the sponsor had falsely advised the Department that she was withdrawing her sponsorship without her knowledge. He attached several statutory declarations of the sponsor in regard to this matter, which state that information was provided to the Department without her consent and that she wished to continue with the sponsorship. At hearing the applicant gave evidence that it was in fact the sponsor who provided the information to the department in 2018 and that she later fabricated the story that it had been provided by a relative without her consent. He also attached medical documents in relation to the sponsor as well as documents indicating that they have jointly apply for a divorce.
Other documents submitted by the applicant to the Tribunal include evidence of the applicant’s employment, medical evidence in relation to his health conditions, a letter of support from the parents of his current partner, evidence that he and his partner rent property together and various identity documents for the applicant, his partner and their son.
At hearing before the Tribunal the applicant elaborated on the evidence contained in his various statutory declarations about the circumstances in which his relationship with the sponsor ended. The Tribunal also heard evidence from the applicant’s current partner about the commencement of their relationship and the birth of their son, now aged 5.
CONSIDERATION
The first question the Tribunal must determine is whether the applicant was in a spousal relationship with his former sponsor. The delegate did not consider this issue, because the relationship had ended prior to a formal assessment of the visa application and the Department did not receive any information indicating that the applicant claimed to meet any of the exceptions.
The applicant claims that his relationship with the sponsor commenced in 2016 and that they married [in] January 2017 as evidenced by the marriage certificate contained on the departmental file.
I have considered the information provided by the applicant in support of his visa application in January this 2017. Both the applicant and his then sponsor provided consistent statements about their relationship and a range of supporting evidence. That evidence indicates that they lived at the same address at the time the visa application was made and they had been doing so for several months. Correspondence from that property’s real estate agent confirms the applicant moved into an address rented by the sponsor in November 2016.
Bank statements indicate they opened a joint bank account in January 2017 and a statement from the sponsor’s superannuation indicates the sponsor made the applicant a preferred beneficiary in March 2017. The utilities accounts for the rental property in which they resided were held in both names. Medical records for the applicant indicate that the sponsor was recorded as his next of kin by his GP. Statements from the sponsor’s mother and the applicant’s friends confirm they have regular contact with the couple and they believe the relationship to be genuine. In October 2018 local council records show them as joint owners of the dog. The sponsor herself made several statements to the Department in 2018 indicating that the relationship was ongoing, notwithstanding the information received by the Department that suggested that it wasn’t.
At hearing the applicant gave evidence that he could not recall exactly when the relationship ended, but agreed it was prior to the time the sponsor withdrew her sponsorship in May 2019. The applicant’s partner gave evidence that her relationship with the sponsor commenced in late 2018 after a long friendship and that their child was born in [2019].
On the evidence before it the Tribunal is satisfied that the applicant was in a spousal relationship with the sponsor at the time of the visa application and that relationship ceased around the end of 2018.
Cl. 820.221(1) requires that the applicant continue to be the spouse of the sponsoring partner. The Tribunal has considered the submission made on behalf of the applicant to the effect that the applicant meets the requirements set out in cl 820.211(b) and cl 820.221(1) by virtue of his relationship with his current partner.
However as set out in the Tribunal’s letter to the applicant dated 13 November 2024, and as explained to the applicant at hearing, ‘sponsoring partner’ is defined in cl 820.111 of the Regulations to be the Australian citizen (or Australian permanent resident or eligible New Zealand citizen) who was specified in the visa application as the spouse of the applicant. The only exception to this is where the applicant was a holder of a Subclass 300 (Prospective marriage) visa, a situation that does not arise in the current review. For these reasons the applicant is unable to meet the requirements of cl 820.221(1) by reason of his relationship with his current partner. Therefore the applicant does not meet the requirements of 820.221(1).
Has a claim of family violence been made under the Regulations?
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).
On 16 September 2024 the Tribunal wrote to the applicant, inviting him to provide information capable of meeting the evidentiary requirements for a valid claim of family violence. The Tribunal’s correspondence noted that the requirements for a valid non-judicially determined claim of family violence were set out in the Migration (Specification of evidentiary requirements family violence) Instrument (LIN 23/026) 2023, a copy of which was attached to the Tribunal’s correspondence.
On 25 September 2024 the applicant submitted further documents to the Tribunal. Some of those documents were duplicates of those already provided to the Tribunal, while other documents related to the applicant’s relationship with his new partner and their son. The applicant also provided a divorce order issued by the Federal Circuit and Family Court of Australia in respect of the marriage between the applicant and the sponsor declaring that there are no children of the marriage and that the divorce order took effect on 17 December 2022. Those documents did not include the two items of evidence specified in LIN 23/026.
An accompanying submission prepared by the applicant’s migration agent asserts that the applicant meets the requirements set out in cl 820.211(b) and cl 820.221(1) by virtue of his relationship with his current partner. In particular it was submitted that the law does not require that the applicant is sponsored by the original sponsoring partner at the time of decision and that the Tribunal should treat the applicant’s current partner as the sponsoring partner and find he meets the requirements for the visa.
On 13 November 2024 the Tribunal wrote to the applicant, noting his request that the Tribunal determine the review on the basis on the basis of the sponsorship of his new partner. That correspondence drew his attention to the definition of ‘sponsoring partner’ in the Regulations. The correspondence also again drew the applicant’s attention to the evidentiary requirements for family violence claims and attached details of those requirements.
At the Tribunal hearing, I discussed with the applicant that a valid claim of family violence must be made in the manner set out in the Regulations. The applicant confirmed that he had not approached the police with his claims of family violence and that there was no judicially determined claim of family violence. Rather he relied on the evidence of his non-judicially determined claim of family violence.
I drew the applicant’s attention to the requirements of the legislative instrument, in particular that a non-judicially determined claim of family violence requires at least two items of evidence mentioned in Schedule 1. Those two items of evidence include evidence of a medical practitioner, police officer, child welfare officer, family violence support service provider, social worker, psychologist, family relationship counsellor or educational professional. I noted the applicant hadn’t provided any items of evidence from those categories and it appeared his claim of family violence was not valid as result.
The applicant gave evidence that he did not speak to the police or seek assistance from any medical professional in respect of the family violence because he did not know he should do so. In particular his migration agent did not give him any guidance and he did not know it was necessary. On the advice of his current partner, he rang RESPECT to discuss his situation, but he did not identify himself and it is not possible for him to obtain the evidence that would satisfy the legislative instrument.
As the evidence provided in support of the applicant’s non-judicially determined claim of violence does not comply with that specified in the instrument, it does not meet the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has not been made under reg 1.23.
Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl 820.221(3) for the grant of the visa. At hearing the applicant confirmed that the sponsor was not deceased and that there were no children of the relationship and therefore he could not meet the criteria set out in cl 820.221(2) or cl 820.221(3)(b)(ii). As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.
MINISTERIAL REFERRAL
Having regard to the circumstances of the applicant and having considered the Ministerial guidelines relating to the Minister’s discretionary power under section 351 set out in “Minister’s guidelines on ministerial powers (sections 351, 417, and 501J)”, the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention on the basis that it appears to raise circumstances of a kind the Minister has indicated should be brought to his attention in those Guidelines.
In Part 4 of those Guidelines, the Minister states that the following cases should be brought to his attention:
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

Medical evidence produced to the Tribunal indicates the applicant was diagnosed with [a medical condition] in 2022. He currently spends 5 to 6 hours undertaking [treatment], and is awaiting [an operation]. He is the husband of an Australian citizen and together they have a [age]-year-old Australian citizen child who will start school this year.
The evidence before the Tribunal indicates that the relationship between the applicant and his current partner is both genuine and long-standing and the applicant’s partner gave evidence that the applicant has supported her financially and emotionally during the course of their six-year relationship. The applicant financially supports the family by working as a [occupation] at a [workplace] in regional Victoria on the days he is not undertaking [treatment]. His employer describes him as a reliable, hard-working and skilled member of their [team]. Prior to lodging the partner visa application, the applicant was sponsored by an Australian business in the skilled occupation [after] obtaining his qualifications in Australia. He withdrew that application in order to pursue the partner visa application.
In other circumstances the applicant could go offshore to lodge a new partner visa application on the basis of his relationship with his current Australian citizen partner. This is not possible for the applicant because any suspension of his regular [treatment], even for a very short time, creates serious and potentially fatal risks to his health.
The Tribunal considers the above constitute strong compassionate circumstances which if not recognised would result in serious, ongoing and potentially irreversible harm to the applicant’s Australian citizen partner and child and the applicant himself and warrant referral to the Minister for consideration.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Date(s) of hearing: 24 January 2025
Representative for the Applicant: Mr Prabjhot Sahni (MARN: 1805607)