2305121 (Migration) - [2025] ARTA 455

2305121 (MIGRATION) [2025] ARTA 455 (25 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2305121

Tribunal:General Member G Bartley
Place:Sydney
Date: 25 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 visa:
·cl.820.211(2) of Schedule 2 to the Regulations; and
·cl.820.221(3) of Schedule 2 to the Regulations.

Statement made on 25 February 2025 at 10:31am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship before relationship ceased – joint bank account – social and government recognition of the relationship – non-judicially determined claim of family violence – threats of deportation – mental health issues – compelling reasons – best interests of an Australian citizen child – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; Schedule 3, Criteria 3001; rr 1.15, 1.21-1.25
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
ISSUES
The first issue in this review is whether the applicant, [named] (also known as [an alias]), was in a genuine and continuing spouse relationship with her sponsor, [named], as defined in s 5F of the Migration Act 1958 (Cth) (the Act) prior to the relationship ceasing. The second issue is whether the applicant has experienced family violence committed by the sponsor. The third issue is whether the applicant meets the requirements in Schedule 3 of the Migration Regulations 1994 (Cth) (the Regulations), or there are compelling reasons for not applying those criteria.
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Act.
The applicant applied for the visa on 19 August 2020 on the basis of her relationship with the sponsor, [named]. At that time, Class UK contained Subclass 820. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2305121 (Migration)

Details

AGLC: 2305121 (Migration) [2025] ARTA 455
Case: [2025] ARTA 455
Decision Date: 25 February 2025

CaseChat Overview and Summary

The matter before the Tribunal involved an application for a Partner (Temporary) (Class UK) visa by [applicant's name], a citizen of the Philippines, who was married to [sponsor's name], an Australian citizen. The Tribunal was required to determine whether the relationship between the applicant and the sponsor was genuine and ongoing as of the time of the visa application on 19 August 2020, until the cessation of the relationship on 1 December 2021. The central issues for the Tribunal to resolve included whether the marriage was valid, the authenticity of the relationship, and whether the applicant's claims of family violence were credible.

The Tribunal found that the applicant and sponsor's marriage was valid under Australian law. The evidence presented, including the marriage certificate and the applicant's testimony, was deemed reliable and consistent. The Tribunal rejected the certificate issued under s 376 of the Act that suggested the relationship was contrived for migration purposes, finding it unreliable. The Tribunal placed significant weight on the applicant's oral evidence, which was straightforward and consistent with the documentary evidence, despite some inconsistencies in the details of how the parties first met.

The Tribunal also found the applicant's claims of family violence credible, supported by medical, domestic violence, and victim counselling reports, as well as a Final Apprehended Domestic Violence Order (ADVO). The Tribunal held that these factors, together with the joint bank account statements and other documentation, demonstrated a genuine and continuing relationship between the applicant and the sponsor. Given these findings, the Tribunal concluded that the decision under review was flawed and remitted the matter back to the Minister for reconsideration of the remaining criteria for the visa.

In conclusion, the Tribunal set aside the decision under review and directed the Minister to reconsider the application for a Partner (Temporary) (Class UK) visa, taking into account the applicant's meeting of the criteria outlined in clauses 820.211(2) and 820.221(3) of Schedule 2 to the Regulations. The Tribunal's decision was made on 29 January 2025.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter be remitted for reconsideration BACKGROUND The applicant is [an age]-year-old citizen of the Philippines. She has declared three previous relationships and has one child from each of those relationships, currently aged [respective ages] years. Those children live in the Philippines and are not included in the current application. The applicant’s parents and [number] of her [siblings] live in the Philippines. Her other siblings live in [specified countries]. The applicant is self-employed at a [business 1] and receives a payment (special benefit) from Centrelink. The sponsor, [named], is [an age]-year-old Australian citizen by birth. He has not declared any previous marriages or de facto relationships. The sponsor’s parents and [specified siblings] are deceased. One surviving brother lives in Australia. The sponsor is retired and receives a Centrelink aged pension. The applicant and the sponsor (the parties) stated in the application that they met on an online dating site in 2016. They first met in person in the Philippines on 24 January 2017. The sponsor stayed with the applicant in her family home for a few days and returned to Australia in February 2017. The sponsor travelled to the Philippines to visit the applicant [in] May 2019 and stayed for around two weeks. The applicant arrived in Australia [in] June 2019 after being granted a Visitor visa (Subclass 600) and has not departed since that date. The parties were married at [Town 1] [in] April 2020. CONSIDERATION OF CLAIMS AND EVIDENCE Prior to and following the hearing, the applicant submitted additional documents to support the application, including but not limited to the following: various medical, domestic violence and victim counselling reports regarding the applicant, a copy of the applicant’s daughter’s birth certificate, a Provisional and a Final Apprehended Domestic Violence Order (ADVO) protecting the applicant from [Partner A], dated [in] September and [December] 2022, joint bank account statements in the parties’ names, a receipt for a car, and photographs. In making my decision, I have had regard to the Department and Tribunal files and the oral evidence at the hearing. The applicant gave her oral evidence in a direct and straightforward manner. She responded to the Tribunal’s questions without delay or obfuscation. The applicant’s oral evidence was generally consistent with the Department’s movement records and the documents submitted to support the application, including the reports regarding her claims of family violence. While the evidence regarding the circumstances in which the parties first met in the Philippines was not entirely coherent and consistent, I am satisfied that this is due to the passage of time. I have placed weight on the applicant’s oral evidence as I consider it to be reliable. There is a certificate issued under s 376 of the Act on the Department file which relates to information provided to the Department that the parties’ relationship was contrived for migration purposes. The certificate is signed, and I am satisfied that it is valid. The information provided to the Department by third parties, some of whom chose to remain anonymous, is contrary to the other evidence before me and some of details included are factually incorrect. I have not placed any weight on that information because I do not consider it to be reliable. Was there a spouse relationship?

Evidence

Evidence Before The Court

The applicant and the sponsor (the parties) stated in the application that they met on an online dating site in 2016. They first met in person in the Philippines on 24 January 2017. The sponsor stayed with the applicant in her family home for a few days and returned to Australia in February 2017. The sponsor travelled to the Philippines to visit the applicant [in] May 2019 and stayed for around two weeks. The applicant arrived in Australia [in] June 2019 after being granted a Visitor visa (Subclass 600) and has not departed since that date. The parties were married at [Town 1] [in] April 2020. CONSIDERATION OF CLAIMS AND EVIDENCE Prior to and following the hearing, the applicant submitted additional documents to support the application, including but not limited to the following: various medical, domestic violence and victim counselling reports regarding the applicant, a copy of the applicant’s daughter’s birth certificate, a Provisional and a Final Apprehended Domestic Violence Order (ADVO) protecting the applicant from [Partner A], dated [in] September and [December] 2022, joint bank account statements in the parties’ names, a receipt for a car, and photographs. In making my decision, I have had regard to the Department and Tribunal files and the oral evidence at the hearing. The applicant gave her oral evidence in a direct and straightforward manner. She responded to the Tribunal’s questions without delay or obfuscation. The applicant’s oral evidence was generally consistent with the Department’s movement records and the documents submitted to support the application, including the reports regarding her claims of family violence. While the evidence regarding the circumstances in which the parties first met in the Philippines was not entirely coherent and consistent, I am satisfied that this is due to the passage of time. I have placed weight on the applicant’s oral evidence as I consider it to be reliable. There is a certificate issued under s 376 of the Act on the Department file which relates to information provided to the Department that the parties’ relationship was contrived for migration purposes. The certificate is signed, and I am satisfied that it is valid. The information provided to the Department by third parties, some of whom chose to remain anonymous, is contrary to the other evidence before me and some of details included are factually incorrect. I have not placed any weight on that information because I do not consider it to be reliable. Was there a spouse relationship? Clause 820.211(2)(a) requires that at the time the visa application was made, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case, the applicant claims that at the time of application, on 19 August 2020, until the cessation of the relationship, on 1 December 2021, she was the spouse of the sponsor, who is an Australian citizen. ‘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). In forming an opinion about these matters, regard must be had to all of 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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.Were the parties validly married?

Decision

Reasons for decision

Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.DECISION The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 visa:• cl.820.211(2) of Schedule 2 to the Regulations; and• cl.820.221(3) of Schedule 2 to the Regulations.Date of hearing: 29 January 2025ATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(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).REG 1.21…"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.…REG 1.23When is a person taken to have experienced or committed family violence?(1) For these Regulations, this regulation explains when:(a) a person (the alleged victim ) is taken to have experienced 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 experienced family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have experienced family violence, and how those persons are related to the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator mentioned in this regulation.Circumstances in which family violence is experienced and committed--injunction under Family Law Act 1975(2) The alleged victim is taken to have experienced 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 experienced and committed-court order(4) The alleged victim is taken to have experienced 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:(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.Circumstances in which family violence is experienced and committed-conviction(6) The alleged victim is taken to have experienced 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:(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.Circumstances in which family violence is experienced 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 experienced 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 experienced family violence; and(b) the alleged victim is:(i) a spouse or de facto partner of, or a prospective spouse of, the alleged perpetrator; or(ii) a dependent child of:· (A) the alleged perpetrator; or· (B) the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator; or· (C) both the alleged perpetrator and the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator; or(iii) a member of the family unit of a spouse or de facto partner of, or a prospective spouse of, the alleged perpetrator who has made a combined application for a visa with the spouse, de facto partner or prospective spouse (as the case may be); 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 experienced 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 experienced relevant family violence; and(b) if the Minister is satisfied that the alleged victim has experienced 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 experienced the relevant family violence:(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has experienced 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 experienced family violence.(11) The alleged victim is taken to have experienced 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 experienced 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:(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.(13) The alleged victim is taken to have experienced 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 experienced 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 experienced relevant family violence must have occurred while:(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.Schedule 33001(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or(c)if the applicant:(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(ii) entered Australia unlawfully on or after 1 September 1994;whichever is the later of:(iii) the last day when the applicant held a substantive or criminal justice visa; or(iv) the day when the applicant last entered Australia unlawfully; or(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:(i) the day when that last substantive visa ceased to be in effect; and(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.3003If:(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and(b)on 31 August 1994, the applicant was either:(i) an illegal entrant; or(ii) the holder of an entry permit that was not valid beyond 31 August 1994;the Minister is satisfied that:(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with the conditions that apply or applied to:(i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(ii) any subsequent bridging visa; and(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.3004If the applicant:(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;the Minister is satisfied that:(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with:(i) the conditions that apply or applied to:(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(B)any subsequent bridging visa; or(ii) the conditions that apply or applied to:(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and(B)any subsequent bridging visa; and(f)either:(i) in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

Ratio Decidendi

Legal Principle Established

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