2115252 (Migration)

[2023] AATA 374

2115252 (Migration) [2023] AATA 374 (21 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2115252

MEMBER:Kira Raif

DATE:21 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

Statement made on 21 February 2023 at 14:38pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased –– family violence allegations – non-judicially determined family violence claim – statutory declaration and specified evidence – insufficient evidence – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.21, 1.23 – 1.25

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 8 October 2021 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 October 2018 on the basis of his relationship with his sponsor.  The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.211 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 10 January 2023 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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). 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.

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

6. 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. 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).

7. In the present case the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence.

   Has a claim of family violence been made under the regulations?

8. Under reg 1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with reg 1.24 is provided.

9. The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes.  

10. A statutory declaration under reg 1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).

11. The applicant provided some evidence of his relationship with the sponsor, including screenshots and evidence of contact and in his submission to the Tribunal he states that he deleted other evidence of the relationship after the break-up. The applicant provided to the Tribunal a statement from his employer who expressed the view that the applicant had been subjected to family violence. The Tribunal acknowledges that evidence but it does not constitute prescribed evidence of family violence.

12. The Tribunal discussed with the applicant, during the hearing, the deficiency of the presented evidence. The applicant told the Tribunal that he had not seen a psychologist because he finds it hard to talk about his experience but he is willing to see one now.

13. At the applicant’s request, he was granted more time to provide the prescribed evidence of family violence. The applicant was granted until 8 February 2023 to provide additional evidence to the Tribunal. The Tribunal expressly informed the applicant that if he did not provide the prescribed evidence within the time allowed, and if he made no further contact with the Tribunal, the Tribunal may proceed to make a decision and that he may not be successful in his application for review.

14. The applicant did not make contact with the Tribunal and had not provided any evidence by 8 February 2023. On 13 February 2023 the Tribunal wrote to the applicant noting that he had failed to provide the evidence within the time allowed and inviting the applicant to provide any other material he wished the Tribunal to consider by 20 February 2023. At the time of this decision, the applicant had not provided any further evidence to the Tribunal. He has not indicated his intention to do so and has not requested further time to enable him to provide further evidence to the Tribunal. In these circumstances, the Tribunal has decided to proceed to the decision without taking any other steps to obtain evidence from the applicant.

15. As the Tribunal informed the applicant in the course of the hearing, it has formed the view that the applicant did not present sufficient evidence that met the statutory requirements in set out in r. 1.24, relevant to establishing a claim that he had experienced family violence. That is, having considered the evidence before it, the Tribunal is not satisfied that the claim of family violence has been properly made in accordance with r. 1.24. The Tribunal is unable to consider the applicant’s claim that he had experienced family violence. The Tribunal is not satisfied that family violence occurred. 

16. The applicant’s evidence to the Tribunal is that his relationship with the sponsor has ended. The Tribunal finds that at the time of this decision, the applicant is no longer the spouse of the sponsor. There is no evidence that the applicant meets any of the alternative criteria for the grant of the visa. There is no evidence of the sponsor’s death, nor of any children.

17. 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. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. The Tribunal is not satisfied the applicant meets cl. 820.221. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    decision

18. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

    Kira Raif
    Senior Member