2115731 (Migration)

[2023] AATA 542

2115731 (Migration) [2023] AATA 542 (31 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2115731

MEMBER:Margie Bourke

DATE:31 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 31 January 2023 at 12:44pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Federal Circuit and Family Court remittal – relationship with sponsor had ceased – victim of family violence – not satisfied that the applicant has resided with the sponsor – not satisfied the applicant and the sponsor were in a partner relationship – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, r 1.15, Schedule 2, cl 801.221

CASES
He v MIBP [2017] FCAFC 206

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 15 January 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 December 2013 on the basis of his relationship with his sponsor. At that time, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.801.221 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.801.221(6)(b), (c)(i). The applicant claims this occurred in this case.

4. The delegate refused to grant the visa in a decision dated 15 January 2019 on the basis that the applicant did not meet cl.801.221 because the delegate was not satisfied the applicant was the spouse of the sponsor at the time of decision.

5. The Tribunal, differently constituted, affirmed the decision of the Department in a decision record dated [in] 2021. The applicant submitted to the Tribunal, differently constituted, that the relationship with his sponsor had ceased, but that he met the family violence requirements.

6. By consent order of the Federal Circuit and Family Court of Australia (Division 2), dated [in] 2021 the matter was remitted back to the Tribunal on the basis that the decision of the Tribunal dated [in] 2021 was affected by jurisdictional error because the Tribunal was satisfied the applicant had been in a genuine relationship with the sponsor at the time of application and the time of decision, but the Tribunal failed to afford the applicant the opportunity to give evidence of present arguments in support of his claim to meet the family violence criterion in cl.801.221(6).

7. The applicant was invited to attend an in-person hearing on 12 December 2022. The applicant requested a postponement of the hearing, and this request was granted.

8. The applicant was invited to attend an in-person hearing on 16 January 2023. Due to personal circumstances the member was unable to attend the hearing in-person. The Tribunal considered the history of the review, the advice of the review applicant that he would be attending in-person and would not be calling any witnesses, the nature of the matter and the fact that it did not involve a large amount of paperwork to be put to the applicant during the course of the hearing. The Tribunal decided it would be preferable, if the review applicant did not object, to proceed with the hearing with the member attending by video, rather than a further postponement. For this reason the hearing proceeded on 16 January 2023 with the applicant and interpreter attending the hearing in-person, and the member attending remotely.

9. The applicant appeared before the Tribunal on 16 January 2023 to give evidence and present arguments. The Tribunal hearing was assisted by an interpreter in English and Punjabi languages.

10. The Tribunal is satisfied that the applicant was content to proceed with the member participating by video. The Tribunal is satisfied that with the hearing proceeding in this format, the applicant had the opportunity to give evidence and present arguments, and the Tribunal was able to conduct a fair and effective hearing and to properly assess the evidence before it.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

13. The applicant confirmed that he had no representative or agent attending the hearing. The applicant confirmed that he had not provided any further submissions, and that he relied on previous submissions and documents provided to the Department and previously constituted Tribunal.

14. The applicant stated to the Tribunal that his relationship with the sponsor had ceased, and he claimed to meet the requirements for the subclass 801 Partner visa on the basis that he met the family violence criteria.

15. The Tribunal discussed with the applicant that the Tribunal needed to be satisfied that the applicant and sponsor were in a genuine partner relationship at the time he claimed he experienced family violence. The Tribunal discussed with the applicant that the Tribunal then needed to consider whether the applicant met the family violence evidentiary requirements. The Tribunal discussed with the applicant the role of the independent expert if the Tribunal found that the applicant was the spouse of the sponsor, and met the family violence evidentiary requirements, but the Tribunal was not satisfied that the applicant had experienced relevant family violence. During the hearing, the Tribunal discussed all these aspects with the applicant.

16. Prior to the hearing, the Tribunal had written to the applicant and invited him to provide further information relevant to the review. The applicant did not provide any further information to the Tribunal.

17. At the conclusion of the hearing, the Tribunal invited the applicant to advise if he’s wished to provide any further information to the Tribunal prior to the Tribunal finalising its decision on the matter. The Tribunal advised the applicant that he may wish to provide information relevant to matters that had been discussed in the hearing. The applicant stated he did not wish to provide any further information to the Tribunal.

    Relevant and not disputed facts or circumstances

18. Based on information provided to the Department, the Tribunal is satisfied that the applicant had been previously married to [Ms A] on [date] October 2007, and was divorced from [Ms A] by order of the Federal Circuit Court of Australia dated [date] April 2013.

19. Based on information provided to the Department the Tribunal is satisfied the applicant and sponsor were married in South Australia on [date] November 2013.

20. Based on information provided to the Department, the Tribunal is satisfied the sponsor was arrested on 29 August 2014, remained in custody from that date, and was sentenced on [date] April 2015 to a period of 5 ½ years with a non-parole period of 3 ½ years for drug-related offences. The Tribunal is satisfied that the sponsor served her sentence in [Prison 1], and was released in 2017, or early 2018. The exact date of the sponsors release has not been provided to the Tribunal.

21. The sponsor had a son, born prior to her meeting the applicant. The Tribunal accepts the sponsor’s son was a child at the time of her marriage to the applicant. Based on the evidence before it, the sponsor’s son resided with the sponsor’s mother at the sponsor’s mother’s address in [Suburb 1] during the time the sponsor was serving her prison sentence.

22. The application for the subclass 820 and subclass 801 Partner visa was lodged by the applicant on 10 December 2013. The applicant was granted a subclass 820 visa on 21 October 2014. The applicant lodged the information required for permanent stage processing online on 31 August 2017, and recorded in that form that the sponsor was still in [Prison 1].

23. Based on Centrelink records, a statement by the sponsor provided by the applicant to the Department, and evidence of the applicant, the Tribunal is satisfied that the sponsor has always recorded her marital status as “single” with Centrelink. The Tribunal is satisfied that the sponsor never notified Centrelink of her marriage or relationship with the applicant.

    Assessment of the spousal relationship between the applicant and sponsor

24. There are three different periods of time involving different circumstances of the applicant and sponsor, in which the Tribunal has assessed the relationship between the applicant and the sponsor.

25. In his evidence, the applicant has claimed that he experienced family violence from the sponsor from the commencement of the relationship. Therefore the Tribunal is required to consider whether the applicant and sponsor were in a spousal relationship within the meaning of s.5F(2), from the time the applicant claims the spousal relationship commenced. The applicant has stated that he resided with the sponsor in a spousal relationship from the date of their marriage, namely [date] November 2013. The Tribunal has considered the circumstances of the relationship from the time the applicant claimed the relationship commenced, even though the Department granted the applicant a subclass 820 visa on 21 October 2014.

26. The first distinct period of time is from the date of the marriage on [date] November 2013 until the sponsor’s arrest on 29 August 2014. The second distinct period of time is the sponsor’s incarceration from 29 August 2014, until a date in 2017 or 2018. The third distinct period of time, is from the sponsor’s release in 2017 until the breakdown or cessation of the relationship.

27. The applicant provided information to the Department in support of the application for the visa relevant to the time of application, which included identity documents for the sponsor and the applicant, application and sponsorship forms, academic records for the applicant, two statutory declarations from friends of the sponsor dated December and November 2013, photos of the wedding and wedding ceremony, two congratulatory wedding cards to the applicant and sponsor, photos of the applicant and sponsor, sponsor’s car registration dated 11 December 2013 which nominates the applicant as joint owner, utility bill correspondence to the applicant and sponsor at a [Suburb 2] address dated December 2013, statement of the sponsor dated 3 December 2013 stating that the applicant and her decided to marry in November 2013 and that the applicant moved in with her and her son at their unit in [Suburb 2], utility bill correspondence to the applicant and sponsor at an [address] dated May 2014, joint bank account listing transactions dated February to August 2014, for statutory declarations from friends of the sponsor (one with an attached letter) dated August 2014, collection of receipts and the applicant’s form 80 dated 16 September 2014.

28. Subsequently the applicant provided information to the Department which included the application for permanent stage processing dated 31 August 2017, statutory declaration from a friend of the applicant dated August 2017, the applicant’s superannuation which nominates the sponsor as a non-binding beneficiary, statutory declaration of the sponsor’s mother dated 14 August 2017, statutory declaration of a friend of the sponsor dated August 2017, insurance receipt of the sponsor at the [Suburb 1] address (the sponsors mother’s address), car registration of the sponsor dated 25 July 2017, and 22 July 2016 nominating the applicant as a joint owner of the vehicle at the [Suburb 1] address (certificate records that the registration details does not prove ownership), an invoice addressed to the applicant at the [Suburb 1] address, the applicant’s tax return for the 2016 - 2017 and 2015 - 2016 financial years, the applicant’s estimated payment summary and claimed expenses 2017, statutory declaration from the sponsor dated 18 August 2017 about the relationship, joint bank statements from July 2017 to December 2017 and January 2018 to June 2018, unnamed bank statement dated April 2018 to December 2018, the applicant’s vehicle registration at the [Suburb 1] address, Centrelink letters to the sponsor dated 10 January 2019 and 12 December 2018, statutory declaration from the sponsor dated 6 December 2018 in relation to not declaring her marriage to Centrelink, photographs, marriage certificate, and identity documents.

29. The applicant provided the Tribunal with documents including the first page a letter from a solicitor addressed to the sponsor dated 7 May 2015 which sets out the sentence imposed in the [Court] on[date] April 2015, a psychological report dated 25 February 2020, a statutory declaration signed by the applicant 14 February 2020 in which he declares the relationship of the sponsor ended on 15 July 2019, a medical report dated 10 February 2020 in which the doctor records that the applicant states he is worried that it is unsafe for him to continue to stay with the sponsor, a divorce order of the Federal Circuit Court of Australia dated [date] November 2020 confirming the applicant and sponsor are divorced, and a statement from the applicant dated 22 August 2017. The applicant also provided the Tribunal with a copy of the Department’s decision record dated 15 January 2019.

30. The applicant gave written and oral evidence that he lived with the sponsor and her son after their marriage on [date] November 2013, until her arrest on 29 August 2014. The applicant stated that their relationship with the sponsor was good before she was arrested. The applicant could not remember the address or the suburb where he lived with the sponsor after their marriage. The applicant stated the sponsor’s son was [age] or [age] years old at the time of their marriage. The applicant also stated in the hearing that he tried to help the sponsor stop using drugs. In answer to a question from the Tribunal, the applicant was unable to say what drugs the sponsor used, or describe the drugs or how they were used. The applicant stated that the sponsor’s reaction to him wanting her to stop using drugs was one of violence and abuse. The applicant stated the sponsor continued to socialise with her friends and he did not know what form her relationship with these people took. The applicant stated the sponsor’s behaviour was not consistent with his cultural ideas and what he considered a married relationship should be.

31. The applicant stated the sponsor had kicked him out of the house and told him not to come home. The applicant stated he was not living with the sponsor but was living with friends at the time of her arrest in August 2014. In answer to a question from the Tribunal, the applicant could not say how long he had been living apart from the sponsor and living with friends at the time of the sponsor’s arrest.

32. The applicant stated that he was living apart from the sponsor of the time of her arrest, and she asked her mother to contact him when she was arrested because the sponsor thought he would be able to assist her.

33. The sponsor was in custody from 29 August 2014 to a date in 2017, or early 2018. The applicant stated that during the time the sponsor was in custody he had resided with her mother, and visited the sponsor on a weekly basis. The Tribunal discussed with the applicant that he had not provided any records of his visits to the sponsor. The Tribunal discussed with the applicant that if it made enquiries of the prison, whether the records reveal that he had visited the sponsor on a weekly basis as he claimed. The applicant stated that he went to the prison to visit the sponsor with her mother unless he was busy. He stated in answer to further questions from the Tribunal that he visited the sponsor at the prison fortnightly or monthly.

34. The applicant gave evidence that after the sponsor’s arrest, he moved in with her mother and son to provide them with assistance. The applicant stated he gave financial assistance to the sponsor while she was in custody. The applicant stated that this was evidence that the relationship with the sponsor had continued while she was serving her prison sentence

35. The Tribunal discussed with the applicant that he had provided the statutory declaration of the sponsor’s mother dated 14 August 2017. In the statutory declaration, the sponsor’s mother declares that the applicant is married to her daughter, and that she is in contact with him at least once a fortnight. The sponsor’s mother states that her daughter has been in prison for the past three years and that the applicant has been to see her. The Tribunal discussed with the applicant that sponsor’s mother does not declare in her statutory declaration that the applicant has resided with her for the last three years, but declares that she is in contact with him once a fortnight. The applicant stated to the Tribunal that the sponsor’s mother “maybe made a mistake” in her statutory declaration. The Tribunal discussed with the applicant that it did not consider the sponsor’s mother had made a mistake by omitting to declare he had resided with her for three years. The Tribunal discussed with the applicant that the statutory declaration of the sponsor’s mother is not evidence that the applicant was residing with the sponsor’s mother while the sponsor was serving his sentence.

36. The applicant stated to the Tribunal that he resided with friends for some of the time while the sponsor was serving her sentence, and did not live with the sponsor’s mother all the time. The applicant stated that he had to have a link with friends in case the sponsor’s mother kicked him out. The applicant stated that the sponsor’s son did not like him, and the sponsor’s son had started disliking him. The Tribunal discussed with the applicant that it had some doubts about the credibility of his evidence that he resided with friends on occasions in case the sponsor’s mother decided to evict him.

37. The applicant told the Tribunal that after the sponsor was released from prison she did not reside with him or with her mother. The Tribunal discussed with the applicant that he had put in his statutory declaration that he was living with the applicant and the relationship broke down in July 2019. The Tribunal discussed with the applicant that in the medical report it appears he had advised the doctor that he was still residing with the sponsor and that he felt it was unsafe to continue to stay with the sponsor because of her drug connections. The Tribunal discussed with the applicant that if he had not resided with the sponsor after she was released from prison, the evidence he had provided in his statutory declaration and that was reported by his doctor in the medical support, could not be correct.

38. The Tribunal discussed with the applicant that his evidence in relation to where he resided, and when he resided with the sponsor both before and after her prison sentence, and when he resided with the sponsor’s mother lacked credibility. The Tribunal discussed with the applicant that his evidence about his relationship with the sponsor might not be reliable.

39. The Tribunal has considered that the oral evidence of the applicant in the hearing is that he resided with the sponsor after their marriage on [date] November 2013 and resided with her until she was arrested, and alternatively that he moved out from their marital home and resided with friends sometime before her arrest on 29 August 2014. The applicant has given evidence that he was living with the sponsor’s mother during the sponsor’s incarceration, and alternatively that he resided with friends for some or most of the time during the sponsors incarceration. The applicant has given written evidence that he resided with the sponsor after her release, and alternate ability has given oral evidence that he did not reside with her after her release in 2017, or early 2018. The Tribunal has noted that the oral evidence of the applicant is inconsistent, and that the oral evidence of the applicant is not consistent with the written claims provided to the Tribunal by the applicant.

1. The Tribunal has considered that applicant has provided documentary evidence as confirmation that he was residing with the sponsor which included car registration, utility bills and joint bank statements over the period 2014 to December 2018. The Tribunal notes that the car registration, utility bills and joint bank statements cannot be accepted as reliable evidence that the applicant and sponsor were residing at the same residence. The applicant has given oral evidence that in 2014 prior to her arrest the applicant moved out of the marital home and resided with friends. The applicant has given oral evidence that he resided with friends for some of the time that the sponsor was imprisoned. The applicant has stated in his oral evidence that the sponsor did not reside with him, or with her mother, after her release from prison and further that the sponsor had a new partner or boyfriend. The applicant has been unable to clarify the exact date the sponsor was released from prison, but the Tribunal accepts it was late 2017 or early 2018. Documentary evidence dated from 2014 may therefore not necessarily be evidence that the applicant and sponsor were in an ongoing spousal relationship. Documentary evidence dated from early 2018 to late 2018 is therefore evidence when the parties were not in an ongoing relationship. The Tribunal accepts that the applicant and sponsor continued financial arrangements whilst the sponsor was in custody, and for a period of time after her release that included having their joint names on bank accounts, car registration and utility bills. The Tribunal does not find that this is evidence that the applicant and sponsor were in a genuine and continuing relationship.

2. The Tribunal has considered the information contained in the statutory declarations provided. Of most importance is the statutory declaration provided to the Department, and subsequently to the Tribunal by the applicant, of the sponsor’s mother in August 2017. The Tribunal considers that the sponsor’s mother would have declared in her statutory declaration that the applicant was residing with her as a member of her family if that had been the case.

3. The Tribunal notes that the applicant has given evidence that he resided with friends after he left the marital home prior to the sponsor’s arrest in 2014. The Tribunal notes that the applicant has given evidence that he resided with friends some of the time during the sponsor’s incarceration. The Tribunal notes that the applicant has given evidence that he resided with friends for some of the time after the sponsor’s release from prison.

4. The Tribunal has considered the evidence of the applicant that the sponsor had a new partner or new boyfriend at the time of her incarceration and at the time of her release from prison. The Tribunal has considered the evidence of the applicant that he did not know what relationship she had with her friends immediately after the time of their marriage.

5. The Tribunal has considered the statutory declarations provided in support of the application and in support of the permanent stage processing. The Tribunal accepts the parties were married and friends of the sponsor attended the wedding. The Tribunal has considered the applicant provided a statutory declaration dated 17 August 2017 in which a friend of the sponsor refers to the relationship continuing and the applicant living with the sponsor’s family. The Tribunal has considered the statutory declaration of the sponsor dated 18 August 2017 in which she confirms the applicant provide financial support for her son’s education and everyday expenses, her prison expenses (toiletries) and that he visited her fortnightly in prison, until she was allowed home visits. The Tribunal also considered a statutory declaration provided by the applicant dated 21 August 2017 from a friend of the applicant who confirmed that the applicant often visited the sponsor in jail.

6. The Tribunal has considered all the evidence before it, including the changing and unreliable evidence of the applicant as to whether he was residing with the sponsor at specific periods of time during the claimed relationship. The Tribunal has noted the different information the applicant has provided in his written information and his statements to the Department and that is reported he made to the doctor, and in his statutory declarations and in his oral evidence. The Tribunal has considered that the applicant has indicated to his doctor in 2020 that he still residing with the sponsor, declared in his statutory declaration that the relationship ceased on 15 July 2019, gave oral evidence that he did not reside with the sponsor after her release from custody (in 2017 or early 2018), that he resided with the sponsor’s family during her incarceration and alternatively that he resided with friends and occasionally or some of the time resided with the sponsor’s mother and sponsor’s son during her incarceration, that he resided with the sponsor from the date of their marriage until her arrest on 29 August 2014 and alternatively that he resided with the sponsor from the date of their marriage until she asked him to leave and then he resided with friends and was not living with the sponsor at the time of her arrest.

7. The Tribunal has carefully assessed all the evidence before it. The Tribunal cannot be satisfied that the applicant has resided with the sponsor. Based on the unreliability and lack of credibility in the evidence of the applicant, the Tribunal is not satisfied that the applicant has resided with the sponsor.

   Assessment of R.1.15A(3) and s.5F(2)

8. The Tribunal has considered whether the applicant is in a spousal relationship with the sponsor within the meaning of s5F(2), and has considered all the circumstances of the relationship is set out in r.1.15A(3).

9. Spouse is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

10. In forming an opinion whether they are in a spouse relationship consideration must be given to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3). Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

11. Valid marriage: – Based on the marriage certificate and the applicant’s divorce from his previous spouse, the Tribunal is satisfied that the parties were married on [date] November [2013]. On the evidence before it, the parties were married to each other under a marriage that is valid for the purposes of the Act and meets the requirements of s.5F(2)(a).

12. Financial aspects of the relationship: – the Tribunal is satisfied based on the evidence before it that the applicant and sponsor did not jointly own any real estate or other major assets. The Tribunal is not satisfied that the parties jointly owned vehicles together, although it was noted on the registration certificates. There is no other evidence of joint ownership of vehicles before the Tribunal. The Tribunal is satisfied based on the evidence before it that the applicant and sponsor did not have any joint liabilities. The Tribunal has considered that the applicant and sponsor had joint names on utility bills, but is not satisfied they resided at the same premises, and does not accept that these were joint liabilities other than in name. The Tribunal is satisfied that the applicant and sponsor had a joint bank account, and pooled their resources in the sense they both had access to this joint bank account. The Tribunal accepts that the applicant provided financial support for the sponsor during the time that she was imprisoned. There is no evidence before the Tribunal that one person in the relationship owed any legal obligation in respect of the other. The Tribunal does not accept that to the applicant and sponsor resided at the same household, and on this basis does not accept that they shared day-to-day household expenses, but the Tribunal does accept that the applicant provided financial support to the sponsor to enable her to be able to purchase toiletries and other daily needs whilst in prison.

13. The nature of the household: – as stated above the Tribunal does not accept the claimed living arrangements of the applicant and sponsor and does not accept that the applicant resided with the sponsor at any time during the claimed relationship. For this reason the Tribunal does not accept the applicant and sponsor shared the responsibility for housework in any household. The Tribunal accepts that the sponsor had a son, who resided with her mother when she was in custody. The Tribunal accepts that the applicant provided some financial support at the request of the sponsor’s mother or of the sponsor, when the sponsor was serving a prison sentence, and to this extent there was some joint responsibility for the care and support of the sponsor’s child.

14. Social aspects of the relationship: – the Tribunal accepts that the parties represented themselves to other people as being married to each other, and accepts that based on the statutory declarations and photos friends attended their wedding, and recognise them as being married. The Tribunal has considered the statutory declarations and notes that the opinion of the applicant’s and sponsor’s friends and acquaintances includes recognition that the parties were married, and recognition that the applicant provided support to the sponsor during the time that she was in prison. The Tribunal has considered the statutory declaration of the sponsor’s mother, and accepts that in her opinion the applicant was a good husband and was supportive of the sponsor while she was in custody. The Tribunal is not satisfied based on the evidence before it that the parties planned or undertook joint social activities together, but accepts that the applicant visited the sponsor when she was in prison.

15. Nature of the parties’ commitment to each other: – the Tribunal is satisfied the parties were married on [date] November 2013, but is not satisfied that the parties have lived together since that date. The Tribunal is satisfied that the applicant has provided companionship and support to the applicant during her time in prison by visiting her and providing financial assistance. The Tribunal is satisfied based on the evidence of the applicant that the sponsor did not accept companionship or support from the applicant in relation to support to overcome her drug use, and based on the evidence of the applicant, the sponsor had other relationships that she drew on for companionship after their marriage, and has formed other relationships for partnership after their marriage. The Tribunal finds that neither the applicant nor the sponsor saw the relationship has long-term.

16. Other relevant matters: – the applicant told the Tribunal that if his first wife had supported him he would have got a visa to remain in Australia. The applicant stated that the cause of all that is wrong in his life is his first wife. The applicant stated that his first wife has destroyed his life. He stated she had been granted permanent residency and is enjoying life in Australia and while he is still running around here and there to try and obtain a visa. The applicant stated he had told the Tribunal everything. The applicant stated he had been in Australia for 14 years. He stated that had got married and not committed any crime. The applicant stated the sponsor had met him [when] he was stressed about the actions of his first wife and the sponsor had offered to help him. The applicant stated he was reluctant because the sponsor’s religion and culture was different to his own, but later he decided to marry her. He stated he wanted to live with the sponsor but she did not like that. The applicant stated his first wife cheated on him and the second one, the sponsor, had also cheated on him. The applicant stated he felt depressed by the way his life turned out.

17. The Tribunal has considered all the circumstances of the relationship, as set out above, and all the written and oral evidence provided by the applicant in relation to the claimed relationship between himself and the sponsor. The Tribunal is not satisfied that the evidence provided by the applicant indicates that the relationship between himself and the sponsor was genuine and continuing at the time of application on 10 December 2013, at the time of the marriage on 17 November 2013 or any other subsequent time. The Tribunal is cognisant that the applicant was granted a subclass 820 visa.

18. The Tribunal is not satisfied that the applicant and sponsor lived together, and not separately and apart, on a permanent basis, at the time of application or any time since. The Tribunal is not satisfied based on its assessment of the circumstances of the relationship that the applicant sponsor were in a genuine and continuing relationship at the time of application or any subsequent time. The Tribunal has assessed all the evidence before it and is not satisfied after considering all the circumstances of the relationship as set out in r.1.15A(3), that the applicant is the spouse of the sponsor within the meaning of s.5F(2)(c) or (d) at the time of application or any subsequent time.

19. On the basis of the evidence, the Tribunal is not satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The Tribunal is not satisfied that a spousal relationship existed between the applicant and the sponsor. To meet the meaning of family violence within the regulations, the relevant family violence must occur while the relationship exists between the applicant and the perpetrator, in this case claimed to be the sponsor. Therefore, the issue in relation to whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations does not arise. The Tribunal has therefore not considered whether the applicant has suffered relevant family violence within the meaning of the Regulations.

20. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa

    Margie Bourke
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21 Interpretation

    In 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.