2203501 (Migration) - [2024] AATA 2555

2203501 (Migration) [2024] AATA 2555 (6 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Alice Graziotti
CASE NUMBER:  2203501
MEMBER:Stephen Conwell
DATE:6 May 2024
PLACE OF DECISION:  Perth
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 (Partner) visa:
·cl.100.221(4)(b) and (c)(i) of Schedule 2 to the Regulations.

Statement made on 06 May 2024 at 5:37pm
CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – validly married in home country – provisional visa granted – relationship ceased and judicially-determined claim by applicant of family violence by sponsor – escalating arguments and verbal and physical abuse – application for family violence restraining order withdrawn and final conduct agreement order granted with consent of sponsor but no admission of guilt – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.23(4), Schedule 2, cl 100.221(4)(b), (c)(i)
CASE
Liang v Minister for Immigration [2008] FMCA 9
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 Home Affairs on 23 February 2022 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 16 October 2017 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).
The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 100.221 because the delegate was not satisfied that the applicant was the spouse or de facto partner of [his sponsor]. Consequently the delegate was not required to consider his claim of family violence claims.
The applicant appeared before the Tribunal on 23 April 2024 to give evidence and present arguments. There were no witnesses.
The applicant was represented in relation to the review and the representative (representative) attended the hearing.
The applicant provided a copy of the delegate’s decision to the Tribunal for the purpose of the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant was in a genuine spousal or de facto relationship with his sponsor prior to its cessation.
Background
According to the background facts as set out in the representative’s submission of 6 March 2024 and which appear to not be in dispute, a brief chronology of the applicant’s and sponsor’s (the parties) relationship is set out in the table below:

Date Event

-2015 The parties first met through family friends. They began a romantic relationship and the sponsor visited the applicant in Cameroon.

2016 [The sponsor] again visited [the applicant] in Cameroon. Upon returning to Australia, she told him she was pregnant with his child, but later had a miscarriage.

7 Apr 2017
The parties married in Cameroon. Upon returning to Australia, [the sponsor] told her husband she was pregnant with his child. She

later told him that she had miscarried.

Oct 2017 [The applicant] lodged an application for a Visitor (subclass 600) visa to Australia which was refused on 31 October 2017 as the Delegate was not satisfied that he intended a temporary visit.

16 Oct 2017 The applicant applied for a combined Partner visa, sponsored by [the sponsor].

1 Aug 2018 The applicant was granted a Temporary Partner visa after the Department assessed the parties’ relationship to be genuine.

13 Nov 2018 The sponsor began working as a FIFO [occupation] in the [workplaces] to help support the applicant on his arrival in Australia.

30 Nov 2018 The applicant arrived in Australia. As the sponsor was away for work, her "parents" [Mr and Mrs A], respectively) picked him up from the airport. He began living at the sponsor’s rental home in [Suburb 1], Western Australia ([Road] residence) along with two other tenants. The parties shared a bedroom and ensuite, and cooked meals together.

Nov - Dec 2018 During her "rest period" in Perth the sponsor assisted the applicant to obtain a Medicare card, enrol in a Certificate II in [Subject] (including contributing to his tuition fees) and open a bank account for him with [Bank]. She also attended his [Employment services] appointment to help assist him in finding fulltime employment. During this time they slept in the same bedroom, were physically intimate and presented themselves to friends, family and fellow church goers as a married couple.

18 Jan 2019 The applicant completed his Certificate II in [Subject].

Early Feb 2019 The sponsor suggested the applicant see a doctor to begin IVF treatment. When he refused, the sponsor became verbally abusive towards him. She entered their shared bedroom and began looking through her husband's drawers, taking his passport and vaccination card. The sponsor refused to return her husband's belongings, which escalated into another argument. The applicant called one of his wife's friends to come over and help him get his documents returned but the sponsor refused and kept them locked in her car throughout that night.

At some point, the sponsor started her vehicle and drove 600 metres with the applicant's head still inside, causing injury to his neck. The sponsor refused to take the applicant to the police station or doctor, taking him home instead.

The applicant asked for his phone to be returned but the sponsor had taken it to someone for it to be unlocked and later accused him of having private and inappropriate conversations with other women.

4 Feb 2019 The applicant began psychological counselling and therapeutic sessions at [Medical Centre].

13 Feb 2019 The applicant had agreed to start IVF treatment despite his reservations in an effort to save his marriage with the sponsor.

Late Feb 2019 The applicant and the sponsor had another argument which led to the sponsor holding a knife to the applicant after he again said he was not happy going through with IVF treatment. the applicant ran away from the [Suburb 1] residence and slept in [Park] for the night. He later went to [Mr and Mrs A]'s home for a few hours to recover.

27 Feb 2019 The sponsor accused the applicant of having an affair with a Sister of the church they both attended. the sponsor later met that Sister at a nearby Shopping Centre and accused her of having an affair with the applicant before assaulting her physically and verbally.

Early Mar 2019 The sponsor locked her husband out of their house after an argument. The applicant called the police who took their details and provided him with a card for any further assistance. The sponsor unlocked the door three hours later.

Mar 2019 The sponsor accused the applicant of being ungrateful for bringing him to Australia and that he was being advised by the [A]s to not complete IVF treatment. After the applicant questioned why the sponsor insistence on having IVF treatment, given that she had told him she had suffered two miscarriages, she admitted that one of her fallopian tubes had been cut but refused to provide further details.

24 Mar 2019 The applicant attended [Suburb 2] Police Station to inform them that the sponsor had been verbally threatening to him. He was given a form to complete for a Family Violence Restraining Order (FVRO) and Misconduct Restraining Order.

Apr 2019 The sponsor stopped leaving money for the applicant for food and daily expenses when she left Perth for work, despite knowing he had not yet found a job. The applicant contacted [Sport] Club and became a member. Friends at the club put money together to help the applicant pay for his driver's licence.

12 Apr 2019 The applicant and the sponsor argued when he overheard her insulting her adopted parents and himself, claiming that the applicant had come to Australia to ruin her life and that he had been having an affair with another woman. The argument between escalated after she hung up the phone. The sponsor slapped and choked the applicant and pushed him against a wall. The sponsor yelled threats towards the applicant stating that she would make sure that she would kill him. The applicant called the police and police officers arrived at the home shortly after. Police issued a Police Order protecting him from the sponsor for a period of 72 hours.

13 Apr 2019 The sponsor breached the police order by entering the parties’ bedroom while he was at [sport] practice.

14 Apr 2019 The sponsor breached the police order by visiting the next-door neighbour despite being aware of the order. The applicant remained outside the house until police arrived and to escort the sponsor to the police station.

15 Apr 2019 The applicant saw [Dr B] regarding the physical assault that took place on 12 April 2019. He was prescribed Panadeine Forte.

The sponsor breached the police order by returning to the [Suburb 1] residence after being released from the police station.

The applicant called the Department and advised he was suffering from family perpetrated by the sponsor.

24 Apr 2019 The applicant decided to move out of the [Suburb 1] residence due to fears for his wellbeing and safety. He moved temporarily to a spare room at his friend’s ([Ms C]) home.

29 Apr 2019 The applicant applied for an FVRO protecting him from the sponsor. He was granted an interim FVRO on the same day.

30 Apr 2019 The applicant provided a statutory declaration, a copy of the interim FVRO and evidence of his relationship to the Department.

5 Jul 2019 The sponsor notified the Department that the relationship between her and the sponsor had broken down and he had left the house. She advised she wished to withdraw her sponsorship.

11 Nov 2019 Against his instructions, the applicant's Legal Aid lawyer withdrew his FVRO application prior to the scheduled hearing.

5 Nov 2020 The applicant and the sponsor signed a Conduct Agreement Order (CAO) protecting the applicant. This is a final order, nationally recognized.

Nov 2020 The applicant was interviewed by police in relation to allegations made by the sponsor made immediately after the CAO was signed.

Feb 2021 The applicant was advised by WA Police that the allegations had "now been investigated and no charges will be forthcoming. Therefore the matter is closed."

23 Feb 2022 The applicant's Permanent Partner visa application was refused.

Were the parties in a genuine spousal relationship

In the present case the applicant claims to have been the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term. The applicant also claims to have been the victim of family violence perpetrated by the sponsor during the relationship. The Department was not satisfied he was previously in a genuine and continuing spouse relationship.
However the Tribunal notes that at time of application for the 309 (Partner) (Provisional) visa the sponsor and applicant submitted written statements and other evidence in support of their claim to be in a mutually committed spousal relationship. The Department was satisfied by the evidence and granted the applicant a Partner (Provisional) (Class UF) (Subclass 309) visa on 1 August 2018.
The Tribunal has regard to the evidence relating to the financial aspects of the relationship, including joint ownership of assets, and joint liabilities; the extent of any pooling of financial resources, any legal obligations owed to the other party; and any sharing of day-to-day household expenses. The evidence shows that while the sponsor assisted the applicant by helping him open a bank account, register with government authorities and so on, the parties did not pool financial resources. The Tribunal gives no weight to this factor of the relationship.
The Tribunal has had regard to the evidence provided relating to the nature of the parties’ household, including any joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of housework. Various documents addressed to the sponsor and the applicant, including bank statements, medical reports, utility bills and a police Restraining Order against the sponsor, confirm that that the parties lived in the same address in [Suburb 1]. The Tribunal accepts the evidence that the sponsor’s FIFO work routine meant that the parties lived apart for several weeks until she returned to Perth on her ‘off week’. During these times the applicant managed the household along with the other two tenants. As the applicant was financially dependent upon the sponsor during the greater part of the relationship, the Tribunal is not surprised by the lack of evidence in respect of shared living expenses.
The Tribunal has regard to the evidence provided relating to the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities. There are photographs of the parties’ wedding and some photographs of the parties together and with family members. There are photographs of the applicant celebrating Christmas 2018 with members of the [Church] community in [Suburb 1], whilst the sponsor was working in regional Western Australia.
The Tribunal has regard to the applicant’s statutory declaration of 6 March 2024, and the signed statements of sponsor’s ‘adoptive parents, [Mr & Mrs A], both dated 25 October 2020. It gives particular positive weight to the [A]’s statements, given that the sponsor lived with them for some two and half years from January 2005; they had also become acquainted with the applicant at an early stage of the parties’ relationship, before the applicant’s arrival in Australia.
The Tribunal also has regard to the written submission of his representative as well as written statements made by friends and family members attesting to the genuineness of the parties’ married relationship. It accepts that the parties had a mutual commitment to each other and had plans for a future together.
The Tribunal notes the applicant’s testimony at hearing by that the marriage was initially a happy one in all respects, notwithstanding the prolonged absences of the sponsor due to her FIFO work in regional Western Australia. The relationship soured dramatically because of the sponsor’s insistence on the parties undergoing IVF treatment and her deception regarding the r reasons for it being required. From that time their relationship untenable.
The Tribunal agrees with the representative’s submission that it must have regard to the applicant’s claim of family violence when assessing whether his married relationship was genuine prior to its cessation. Accordingly, the Tribunal gives weight in favour of the applicant that he and the sponsor agreed to be granted a final Conduct Agreement Order (CAO) on 5 November 2020. The Tribunal finds this supports a finding that the parties’ relationship was genuine at the time he experienced the family violence.
As stated by Federal Magistrate Riley in the matter of Liang v Minister for Immigration and Anor [1]
[21] In considering an application for partner visa where there is a claim of domestic violence, it is entirely proper for the Department to undertake a two-stage process. The first stage involves determining whether there has ever been a genuine spousal relationship. If so, the Department should undertake the second stage, which involves determining whether the domestic violence provisions have been satisfied.
[22] However, the two-stage process does not mean that evidence of domestic violence is necessarily irrelevant to the question of whether the applicant and sponsor have ever been in a genuine spousal relationship. For example, the evidence relating to domestic violence might include evidence that supports a claim of cohabitation, or a claim that the applicant and sponsor were known to friends, family or the authorities as a couple.
[1] [2008] FMCA 9 (7 February 2008) at paragraphs [21] and [22]
Based on the evidence available before it, including the testimony of the applicant at hearing, the Tribunal is satisfied that the parties were in a mutually committed spousal relationship before the applicant arrived in Australia, and that they remained in an albeit troubled spousal relationship until the applicant left the sponsor’s rental home in late April 2019. The Tribunal accepts that although the parties shared the house with other tenants, they lived as a married couple in one of the bedrooms, presenting themselves as a married couple to family, friends and the wider community.
On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.
Family violence
In the present case, the applicant claims the relationship with his sponsor has ceased, and he has been the victim of relevant family violence.
An exception to the requirement that the relevant spouse or de facto relationship be continuing is found in cl. 100.221(4)(c)(i) which allows for the visa application to proceed where the relationship between the applicant and the sponsor has ceased and the applicant has suffered relevant family violence.
On 12 April 2019 the applicant was granted a Police Restraining Order protecting him from the sponsor for a period of 72 hours. On 5 November 2020 the parties signed a Conduct Agreement Order (CAO) protecting the applicant from the sponsor. It is a final order. As pointed out by the representative, Legal Aid Western Australia's document "Conduct agreement orders"[2] states:
A conduct agreement order (CAO) is the name given to a family violence restraining order (FVRO) which is made with the consent of the respondent (the person bound by the order).
It is taken to be an FVRO for the purposes of the Restraining Orders Act 1997 (WA).
[2] https //legalaid.wa.gov.au/find-legal answers/restraining-orders/restraining-orders/conduct-agreement-orders
The sponsor was given an opportunity to be heard and make submissions to the Court regarding the restraining order in 2020. The Court subsequently made a CAO on 5 November 2020, signed by both of the parties. The CAO was a final order which ceased on 5 May 2021.
Thus, the applicant has provided a Court Order under State law against the alleged perpetrator for the protection of the alleged victim from violence, made after the Court had given the alleged perpetrator an opportunity to be heard, or otherwise make submissions.
For such an order to be acceptable evidence of a judicial determination of family violence under reg 1.23(4), the Order must have been made after the alleged perpetrator has had an opportunity to be heard or make submissions. A CAO is made with the consent of the respondent (the person bound by the order) with no admission of guilt; it therefore meets this requirement.

Therefore, the applicant meets cl 100.221(4)(c)(i).
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 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 (Partner) visa:
·cl 100.221(4)(b) and (c)(i) of Schedule 2 to the Regulations
Stephen Conwell
Member
ATTACHMENT - Extract from Migration Regulations 1994
1.15ASpouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day‑to‑day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long‑term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Date	Event
-2015	The parties first met through family friends. They began a romantic relationship and the sponsor visited the applicant in Cameroon.
2016	[The sponsor] again visited [the applicant] in Cameroon. Upon returning to Australia, she told him she was pregnant with his child, but later had a miscarriage.
7 Apr 2017	The parties married in Cameroon. Upon returning to Australia, [the sponsor] told her husband she was pregnant with his child. She later told him that she had miscarried.
Oct 2017	[The applicant] lodged an application for a Visitor (subclass 600) visa to Australia which was refused on 31 October 2017 as the Delegate was not satisfied that he intended a temporary visit.
16 Oct 2017	The applicant applied for a combined Partner visa, sponsored by [the sponsor].
1 Aug 2018	The applicant was granted a Temporary Partner visa after the Department assessed the parties’ relationship to be genuine.
13 Nov 2018	The sponsor began working as a FIFO [occupation] in the [workplaces] to help support the applicant on his arrival in Australia.
30 Nov 2018	The applicant arrived in Australia. As the sponsor was away for work, her "parents" [Mr and Mrs A], respectively) picked him up from the airport. He began living at the sponsor’s rental home in [Suburb 1], Western Australia ([Road] residence) along with two other tenants. The parties shared a bedroom and ensuite, and cooked meals together.
Nov - Dec 2018	During her "rest period" in Perth the sponsor assisted the applicant to obtain a Medicare card, enrol in a Certificate II in [Subject] (including contributing to his tuition fees) and open a bank account for him with [Bank]. She also attended his [Employment services] appointment to help assist him in finding fulltime employment. During this time they slept in the same bedroom, were physically intimate and presented themselves to friends, family and fellow church goers as a married couple.
18 Jan 2019	The applicant completed his Certificate II in [Subject].
Early Feb 2019	The sponsor suggested the applicant see a doctor to begin IVF treatment. When he refused, the sponsor became verbally abusive towards him. She entered their shared bedroom and began looking through her husband's drawers, taking his passport and vaccination card. The sponsor refused to return her husband's belongings, which escalated into another argument. The applicant called one of his wife's friends to come over and help him get his documents returned but the sponsor refused and kept them locked in her car throughout that night.
At some point, the sponsor started her vehicle and drove 600 metres with the applicant's head still inside, causing injury to his neck. The sponsor refused to take the applicant to the police station or doctor, taking him home instead.
The applicant asked for his phone to be returned but the sponsor had taken it to someone for it to be unlocked and later accused him of having private and inappropriate conversations with other women.
4 Feb 2019	The applicant began psychological counselling and therapeutic sessions at [Medical Centre].
13 Feb 2019	The applicant had agreed to start IVF treatment despite his reservations in an effort to save his marriage with the sponsor.
Late Feb 2019	The applicant and the sponsor had another argument which led to the sponsor holding a knife to the applicant after he again said he was not happy going through with IVF treatment. the applicant ran away from the [Suburb 1] residence and slept in [Park] for the night. He later went to [Mr and Mrs A]'s home for a few hours to recover.
27 Feb 2019	The sponsor accused the applicant of having an affair with a Sister of the church they both attended. the sponsor later met that Sister at a nearby Shopping Centre and accused her of having an affair with the applicant before assaulting her physically and verbally.
Early Mar 2019	The sponsor locked her husband out of their house after an argument. The applicant called the police who took their details and provided him with a card for any further assistance. The sponsor unlocked the door three hours later.
Mar 2019	The sponsor accused the applicant of being ungrateful for bringing him to Australia and that he was being advised by the [A]s to not complete IVF treatment. After the applicant questioned why the sponsor insistence on having IVF treatment, given that she had told him she had suffered two miscarriages, she admitted that one of her fallopian tubes had been cut but refused to provide further details.
24 Mar 2019	The applicant attended [Suburb 2] Police Station to inform them that the sponsor had been verbally threatening to him. He was given a form to complete for a Family Violence Restraining Order (FVRO) and Misconduct Restraining Order.
Apr 2019	The sponsor stopped leaving money for the applicant for food and daily expenses when she left Perth for work, despite knowing he had not yet found a job. The applicant contacted [Sport] Club and became a member. Friends at the club put money together to help the applicant pay for his driver's licence.
12 Apr 2019	The applicant and the sponsor argued when he overheard her insulting her adopted parents and himself, claiming that the applicant had come to Australia to ruin her life and that he had been having an affair with another woman. The argument between escalated after she hung up the phone. The sponsor slapped and choked the applicant and pushed him against a wall. The sponsor yelled threats towards the applicant stating that she would make sure that she would kill him. The applicant called the police and police officers arrived at the home shortly after. Police issued a Police Order protecting him from the sponsor for a period of 72 hours.
13 Apr 2019	The sponsor breached the police order by entering the parties’ bedroom while he was at [sport] practice.
14 Apr 2019	The sponsor breached the police order by visiting the next-door neighbour despite being aware of the order. The applicant remained outside the house until police arrived and to escort the sponsor to the police station.
15 Apr 2019	The applicant saw [Dr B] regarding the physical assault that took place on 12 April 2019. He was prescribed Panadeine Forte.
The sponsor breached the police order by returning to the [Suburb 1] residence after being released from the police station.
The applicant called the Department and advised he was suffering from family perpetrated by the sponsor.
24 Apr 2019	The applicant decided to move out of the [Suburb 1] residence due to fears for his wellbeing and safety. He moved temporarily to a spare room at his friend’s ([Ms C]) home.
29 Apr 2019	The applicant applied for an FVRO protecting him from the sponsor. He was granted an interim FVRO on the same day.
30 Apr 2019	The applicant provided a statutory declaration, a copy of the interim FVRO and evidence of his relationship to the Department.
5 Jul 2019	The sponsor notified the Department that the relationship between her and the sponsor had broken down and he had left the house. She advised she wished to withdraw her sponsorship.
11 Nov 2019	Against his instructions, the applicant's Legal Aid lawyer withdrew his FVRO application prior to the scheduled hearing.
5 Nov 2020	The applicant and the sponsor signed a Conduct Agreement Order (CAO) protecting the applicant. This is a final order, nationally recognized.
Nov 2020	The applicant was interviewed by police in relation to allegations made by the sponsor made immediately after the CAO was signed.
Feb 2021	The applicant was advised by WA Police that the allegations had "now been investigated and no charges will be forthcoming. Therefore the matter is closed."
23 Feb 2022	The applicant's Permanent Partner visa application was refused.