2301478 (MIGRATION)

[2023] AATA 3962

2301478 (MIGRATION) [2023] AATA 3962 (31 OCTOBER 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2301478

MEMBER:Michael Ison

DATE:31 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

Statement made on 31 October 2023 at 1:07pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) – Subclass 100 (Partner) – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – joint application for subclasses 309 and 100 – relationship ceased and sponsorship withdrawn – arrived on tourist visa then granted temporary activity visa – family violence final intervention order made and now ceased – sponsor consented to order without making admissions – consent to decision without hearing – application for both visa subclasses refused – applicant had not ever held subclass 309, so did not meet requirements for subclass 100 – standing to apply for review of subclass 100 refusal – short duration and limited evidence of genuine and continuing relationship before relationship ceased – family violence provisions do not apply when sponsorship withdrawn – unintended consequence of legislation – temporary activity visa close to ceasing – Ministerial intervention requested – decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(7A), 347(2)(a), 351, 360(2)(b)
Migration Regulations 1994 (Cth), r 1.23(4), (5), Schedule 2, cls 100.221(1), 100.411, 309.213, 309.221(1), (3), 309.222(1)

CASE
Davis v MICMSMA [2023] HCA 10

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 19 January 2023 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 November 2021 on the basis of her relationship with her sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. 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.

4. The applicant in this review is [applicant name], who is a [Age]-year-old national of India. [Applicant name] is referred to as the applicant in these reasons for decision.

5. At the time the applicant applied for the Subclass 100 visa she also applied for a (Class UF) (Subclass 309) Partner (provisional) visa. At that time, Class UF contained only one subclass: Subclass 309 Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Regulations.

6. If an applicant is granted the Subclass 309 Partner Provisional visa, then they can subsequently be considered for the grant of the Subclass 100 Partner Permanent visa.

7. The applicant applied for the Partner visas on the basis she was married to and sponsored by [sponsor name], who was born in India and is [Age] years of age. Evidence of their marriage and [sponsor name] being an Australian citizen was provided to the Department and the Tribunal accepts this evidence. [Sponsor name] is referred to as the sponsor in these reasons for decision.

8. The delegate refused to grant the Subclass 309 visa on the basis that the applicant did not satisfy cl 309.222(1) of Schedule 2 to the Regulations which provides:

   The sponsorship referred to in clause 309.213 has been approved by the Minister and is still in force.

9. The delegate found at the time of their decision the sponsor had withdrawn his sponsorship of the applicant and the applicant does not contest this finding.

10. On 24 August 2023 the applicant wrote to the Tribunal advising she consented to the Tribunal deciding the review without the applicant appearing before the Tribunal pursuant to s 360(2)(b) of the Act. For this reason, a Tribunal hearing was not conducted in this review.

11. The applicant was represented in relation to the review by [Ms A], migration lawyer, of [Legal Centre] who provided legal submissions that were of assistance to the Tribunal in the conduct of this review. [Ms A] is referred to as the applicant’s representative or the representative in these reasons for decision.

    Tribunal decision

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

    Background

13. The applicant married the sponsor in India [in] October 2021 and then applied for the Partner visas on 18 November 2021.

14. [In] January 2022 the applicant arrived in Australia for the first time as the holder of a Subclass 600 Visitor visa that was valid to 5 April 2022.

15. Subsequently, the applicant applied for a Subclass 408 Temporary Activity visa.

16. On 28 March 2022 the applicant was granted a Bridging A visa that had condition 8101 (do not work in Australia) attached from Schedule 8 to the Regulations.

17. On 17 April 2022 the applicant was granted a Bridging B visa that had condition 8101 (do not work in Australia) attached from Schedule 8 to the Regulations.

18. On 16 December 2022 the applicant was granted a Subclass 408 Temporary Activity visa that is valid until 16 December 2023. The applicant’s Subclass 408 visa has conditions 8107 (continue the activity for which the visa was granted), 8303 (not become involved in activities disruptive to the Australian community) and 8501 (maintain health insurance) attached from Schedule 8 to the Regulations.

19. The applicant continues to hold the Subclass 408 visa at the time of this decision.

20. The applicant claims that shortly after she arrived in Australia in January 2022, she began to experience family violence perpetrated by the sponsor.

21. [In] June 2022 Victoria Police made an application for a Family Violence Interim Intervention Order naming the applicant as the protected person and the sponsor as the respondent.

22. [In] December 2022 a Family Violence Final Intervention Order was made in the Magistrates’ Court of Victoria at [Suburb]. A copy of the Order and the applicant’s statement to Victoria Police dated [in] June 2022 was provided to the Tribunal and the Tribunal accepts the Order was made and remained in effect until [June] 2023. There is no information before the Tribunal to indicate that the Order has been extended or that the applicant has obtained a further Family Violence Intervention Order against the sponsor.

23. The Tribunal notes the Family Violence Final Intervention Order made [in] December 2022 was made with the sponsor being present in court and that it records the sponsor consented to the Order being made without the sponsor making any admissions in relation to the allegations made in the application for the Order.

24. On 5 November 2022 the sponsor informed the Department that he withdrew his sponsorship of the applicant’s Partner visa application.

25. On 14 November 2022 the Department wrote to the applicant informing her that the sponsor had withdrawn his sponsorship and requested her response.

26. The applicant advised in her response to the Department that she and the sponsor had separated on an unspecified day in June 2022 and are no longer in a relationship.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The applicant does not contest that she does not have standing to seek review by the Tribunal of the primary decision to refuse her application for the Subclass 309 Provisional Partner visa.

28. When the primary decision was made the delegate of the Minister refused the applicant’s application for both the Subclass 309 visa and the Subclass 100 visa. The delegate found as they had refused the application for a Subclass 309 visa and the applicant had not ever held a Subclass 309 visa she did not meet the requirements of cl 100.221(2), (2A), (3), (4) or (4A) and therefore did not meet the requirements of cl 100.221(1).

29. Section 338(7A) of the Act provides that a decision is a decision the Tribunal can review if it is an application for a permanent visa made at a time when the applicant was outside Australia and the visa is a visa that could be granted while the applicant is either in or outside Australia.

30. The Tribunal accepts that the evidence before it is the application for the Subclass 309 and Subclass 100 visas was made when the applicant was outside of Australia as this is confirmed by the Australian government movement records for the applicant. The Tribunal further accepts that a Subclass 100 visa can be granted to an applicant who is in or outside Australia: cl 100.411 of Schedule 2 to the Regulations.

31. Section 347(2)(a) of the Act provides where a decision is a decision the Tribunal can review the person who has standing to apply for that review is the non-citizen who is the subject of that decision. The Tribunal accepts that in this case the non-citizen who is the subject of the reviewable decision in relation to the Subclass 100 visa is the applicant and that she therefore has standing to bring the application for review that is now before the Tribunal.

32. Based on the above the Tribunal finds the applicant has standing to seek review by the Tribunal of the decision to refuse her application for the Subclass 100 visa.

33. The issue in the present case is whether the applicant meets the requirements of cl 100.221(1).

34. Clause 100.221(1) provides that the applicant must meet the requirements of subclause 2, 3, 4 or 4A. Each of subclauses 2, 3 and 4 requires that the applicant holds a Subclass 309 visa amongst other requirements. As the applicant does not claim to be the holder of a Subclass 309 visa the Tribunal finds that the applicant does not meet the requirements of subclauses 100.221(2), (3) or (4).

35. Subclause 100.221(4A) requires, amongst other things, that the applicant must have held a Subclass 309 visa. As the applicant does not claim to have ever held a Subclass 309 visa the Tribunal finds that the applicant does not meet the requirements of subclause 100.221(4A).

    Conclusion Subclass 100 Partner visa

36. As a consequence of the findings above the Tribunal finds that the applicant does not meet the requirements of cl 100.221(1) of Schedule 2 to the Regulations and the Tribunal therefore must affirm the decision that is under review.

    Request for the applicant’s application to be ‘referred’ to the Minister

37. In a submission dated 31 July 2023 the representative submitted (emphases in original):

    We submit that there exist unique and exceptional circumstances in the applicant’s case which squarely fit into the current Minister's guidelines on ministerial powers (s351, s417 and s501J) issued on 29 March 2016 (‘the Guidelines’)

    We submit that the applicant appears to have met the relationship cessation provisions (RCPs) inserted in the subclause 309.22 of Schedule 2 of the Regulations in August 2022, having experienced family violence in Australia while holding a visa granted during the COVID concession period. The newly inserted provisions provide as follows:

    Schedule 2 – Subclass 309 - Partner (Provisional)

    309.22 Criteria to be satisfied at time of decision

    309.221

    (1)     Either:

    (a)      the applicant continues to meet the requirements of clause 309.211; or

    (b)      if the applicant is in Australia—both of the following apply:

    (i)       subclause 309.412(2) would apply to the visa if granted;

    (ii)       the applicant meets the requirements of subclause (2) or (3) of this clause.

    …

    (3)     The applicant meets the requirements of this subclause if:

    (a) the applicant would continue to meet the requirements of clause 309.211 except that the relationship between the applicant and the sponsoring partner has ceased; and

    (b)      either or both of the following circumstances applies:

    (i)       either or both of the following:

    (A)         the applicant;

    (B) a member of the family unit of the sponsoring partner or of the applicant or of both of them;

    has suffered family violence committed by the sponsoring partner; …

    In particular, we emphasize that the enclosed final FVIO made by the [Suburb] Magistrates’ Court dated [December] 2022, being made under the Victorian law, after [the sponsor] was given an opportunity to be heard, in relation to the violence committed during the married relationship, satisfies the documentary requirement under REG 1.23(4) of the Regulations;

    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) the 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.

    Despite the applicant meeting the above new RCP introduced in August 2022, we concede that the applicant did not meet the subclause 309.222(1) of schedule 2 as the sponsorship was withdrawn. We however highlight that the current law leads to the absurd situation where the victims are required to continue to be sponsored by the alleged perpetrators of family violence.

    This is clearly inconsistent with the policy intent. On the contrary to what the current law requires, the Explanatory Statement to the Migration Amendment (Subclass 100 and 309 Visas) Regulations 2022 provides that the amendments ‘remove the incentive for visa applicants and holders to remain in a violent or dangerous relationship for a visa outcome.’ It further provides that the amendments were intended to align ‘settings for [offshore temporary partner] visa more closely to those currently in place for ‘onshore’ temporary Partner (subclass 820) visa applicants’. In contrast, unlike the newly introduced RCPs for offshore temporary partner (sc309) visa, the RCPs for onshore partner visas do not require applicants who have experienced family violence to continue to be sponsored by alleged perpetrators.

38. The Tribunal does not accept the submission or share the representative’s view that, the standing issue aside, the applicant would not be able to access the family violence provisions in relation to the application for the Subclass 309 Partner Provisional visa. However, the Tribunal does not consider that issue to be material for present purposes.

39. Section 351 of the Act states:

    (1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

    …

    (3)The power under subsection (1) may only be exercised by the Minister personally.

    …

    (7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances

40. The power in s 351 is a power that is personal to the Minister and cannot be delegated. The Minister also does not have a duty to consider whether to exercise this power or not.

41. There is no formal power for the Tribunal to refer matters to the Minister for the Minister to consider exercising the power in s 351 because of the non-compellable nature of the Minister’s power. However, over time an informal practice has emerged where the Tribunal has made such ‘referrals’. These are not ‘referrals’ in any legal or formal sense but are often sought by applicants presumably because they hope if the Tribunal makes a ‘referral’ in a particular case then it may have a greater chance of actually being brought to the Minister’s attention. Whether this is actually the case is a moot point and in any event an applicant can directly seek that the Minister exercise the Minister’s power under s 351 in their application, irrespective of whether the Tribunal makes such a ‘referral’ or not.

42. In 2016 the Minister issued guidelines known as the 2016 Ministerial Instructions to the Department on which applications for the Minister to exercise the power under s 351 (and other intervention powers) should and should not be referred to the Minister. In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 the High Court of Australia on 12 April 2023 found the Department’s administration of these guidelines breached the Minister’s non-delegable statutory powers to decide procedurally whether to consider an application and where the Minister chose to consider an application to decide substantially whether to substitute a more favourable decision or not.

43. While the administration of the Ministerial Instructions by the Department has been ruled as unlawful by the High Court of Australia, the Instructions still provide valuable guidance on when the Minister may choose to make either the procedural or substantive decision referred to above. The Instructions require that there must be unique or exceptional circumstances to establish that it is in the public interest for the Minister to intervene.

44. The Ministerial Instructions are not a statement of law but do make it clear that Ministerial Intervention is not part of the visa process and so the Tribunal as presently constituted does not make such referrals lightly.

45. The Tribunal has considered the applicant’s circumstances and has decided to refer her circumstances to the Minister for the Minister to consider the exercise of the Minister’s powers under s 351 of the Act.

46. For the applicant to be entitled to a grant of a Partner visa under the family violence provisions the relevant family violence must have occurred while the applicant was in a genuine and continuing married relationship with the person who perpetrated the family violence and the relevant family violence must have occurred during that relationship: reg 1.23(5).

47. The evidence before the Tribunal, which is the information the applicant and her sponsor provided to the Department at the time of application for the visa and the representative’s submission to the Tribunal, about the genuineness of their relationship in the Tribunal’s view is not strong or convincing.

48. The evidence includes the visa application, the sponsor’s sponsorship form, identification information, their marriage certificate, divorce and previous relationship information for both the applicant and sponsor, separate three page relationship statements from the applicant and sponsor, statutory declarations from two of the sponsor’s male cousins in Australia, three utility accounts in the sponsor’s name and a small collection of unannotated photos of the applicant and sponsor together including at their wedding ceremony.

49. The Tribunal recognises that the applicant and sponsor had not lived together at the time of application for the visa but they had a wedding celebration and subsequent honeymoon of which there is only limited evidence before the Tribunal. The Tribunal also acknowledges that their written statements, whilst similarly drafted, present a formation of their relationship that is credible within their cultural context and specific life circumstances, including both being divorcees.

50. Of concern to the Tribunal is the short duration of cohabitation, being only five months, and the fact that there are no statements in support of the relationship of the applicant and sponsor from either of their direct family members. At the time of application for the visa the applicant disclosed that both of her parents and a married brother remained in India and the sponsor has both parents and a brother and sister, both of whom are married, remaining in India.  One of the sponsor’s cousin’s, in his statutory declaration declared the applicant and sponsor were married in November 2021 when they were actually married in October 2021 and neither statutory declaration declarant indicates whether they attended the wedding of the applicant and sponsor in India.

1. In addition, apart from the applicant’s statement to Victoria Police, the applicant has not provided any further information about the genuineness of her relationship with the sponsor and the circumstances of the breakdown of their relationship. There is a note on the Department file of a phone call a Departmental officer made to the applicant on 14 November 2022 in which the applicant is noted as saying she left the shared home six months ago, they have applied for divorce, have a court date [in] December 2022 and she is currently staying with a friend and sharing rent with her.

2. The Tribunal did not have the benefit of taking evidence from the applicant. The Tribunal also recognises that it can be difficult after the event to provide the normal range of supporting documentation about a relationship when that relationship has broken down due to family violence. Often in such cases one person, typically the survivor of the family violence, has had to leave the matrimonial home urgently and often without prior preparation to secure or feel as though they are securing, their safety.

3. The reasons the Tribunal has decided to refer the applicant’s circumstances to the Minister are:

   ·There is considerable urgency to the applicant’s present circumstances given the pending expiry of her Subclass 408 visa on 16 December 2023;

   ·The applicant’s circumstances of not being able to access the family violence provisions as an exception to the requirement to be in a genuine and continuing relationship because of the standing issue are both circumstances not anticipated by the recent legislative amendments to those provisions and are an unintended consequence of the legislation as it applies to the applicant;

   ·The applicant obtained court ordered protection against family violence perpetrated by her sponsor;

   ·The fact that the sponsor consented to the Family Violence Final Intervention Order without making any admissions does not, in the Tribunal’s view, place the applicant’s circumstances out of the intended reach of the relevant family violence provisions. Regulation 1.23(4)(b), reproduced in paragraph 35 of these reasons, is intended to address the situation where a court order is made without the person who is the respondent to the order being present. This is often the case with interim Family Violence Intervention Orders where the immediate safety of the person who is protected by the order is prioritised over the procedural fairness rights of the alleged perpetrator, in the knowledge that the matter will be returned to court quickly to enable the respondent to the order to respond to the allegations against them. In this case the Family Violence Final Intervention Order records that the sponsor was in court when the Order was made and for reasons known only to himself chose not to contest that Order being made;

   ·The impacts of family violence on victims are now widely researched, documented and known and are accepted as profoundly impacting survivors in a multitude of ways that are often long-lasting;

   ·The applicant had only been in Australia for five months at the time the incident occurred that led to the Final Order being granted and at the time of this decision has only been in Australia for just short of two years. As a new resident to Australia the applicant is unlikely to have had well-established social or other support networks at the time the family violence occurred, magnifying her reported concerns of isolation and fear of harm adding to the compassionate circumstances of this referral; and

   ·The applicant is not an unlawful non-citizen or otherwise to the Tribunal’s limited knowledge a person whose circumstances fall within any of the ‘inappropriate to consider’ examples in the Ministerial Instructions.

4. The fact the Tribunal is referring the circumstances of the applicant’s visa application and refusal to the Minister does not mean the applicant should rely on this referral alone. The Tribunal is limited in the information it can provide to the Minister and the applicant should supplement this with whatever other information the applicant and her representative believe will assist the Minister to recognise the applicant’s unique or exceptional circumstances.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

   Michael Ison
   Senior Member