2308732 (Migration)
[2024] AATA 3652
•19 September 2024
2308732 (Migration) [2024] AATA 3652 (19 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Manmir Singh Bawa (MARN: 2117648)
CASE NUMBER: 2308732
MEMBER:Justine Clarke
DATE:19 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(1) of Schedule 2 to the Regulations; and
·cl 820.221(3) of Schedule 2 to the Regulations.
Statement made on 19 September 2024 at 5:14pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Court remittal – relationship ceased and claim of family violence – passage of time, mental health and limited and inconsistent evidence of circumstances at time of application – adverse information given no weight – statements by specified practitioners – report by social worker names someone unrelated to case – new marriage and wife pregnant – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 375A(2)(b), 376
Migration Regulations 1994 (Cth), rr 1.15A(3), 1.21, 1.22, 1.23, 1.24, Schedule 2, cls 820.211(2), 820.221(3)(a), (b)(i)CASES
El Jejieh v MHA (No 2) [2019] FCCA 840
He v MIBP [2017] FCAFC 206
MIEA v Pochi (1980) 4 ALD 139Any 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 on 21 July 2015 by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of India. At the time of application for the visa, he was aged [Age] years and at the time of this decision, he is [Age] years of age.
On 10 July 2013, the applicant applied for the visa based on his claimed relationship with [his sponsor]. At the time the applicant applied for the visa, [the sponsor] was aged [Age] years—[Number] years older than the applicant. In these reasons, the Tribunal refers to [the sponsor] as ‘the sponsor’.
At the time the applicant applied for the visa, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. The primary criteria include cl 820.211 and cl 820.221 which respectively require that, at the time of application and decision, the applicant is the spouse or de facto partner of the sponsor, unless the relationship has ceased, and certain circumstances exist. These circumstances include that the applicant has experienced family violence committed by the sponsoring partner: cl 820.221(3)(a) and (3)(b)(i). In the present case, the applicant claims that this occurred.
The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate assessed the application pursuant to cl 820.211(2), finding it to be the only subclause relevant to the applicant’s circumstances.
With respect to the claimed financial aspects of the relationship, the delegate relevantly stated:
… the joint bank statements do not show that your wage or any funds are routinely deposited into this account, nor does it indicate that you use this account for joint financial obligations or common daily and/or household expenses, common occurrences which would be expected from a joint account shared by spouses.
… I find that the joint bank account statements have been fabricated for the sole purpose of providing evidence to support your application, rather than genuine evidence that you and your sponsor pool your finances as a couple.
With respect to the claimed nature of the household, the delegate relevantly stated:
You and your sponsor claimed that you began residing together with your sponsor and her children after your marriage. In support of your claims you have provided your Residential Tenancy Agreements dated 1 August 2013 and 9 April 2014 for [exact address omitted in these reasons] [Suburb 1] and [exact address omitted in these reasons] [Suburb 2] respectively, as well as correspondence addressed to your sponsor at [the Suburb 1 address] dated January 2014 to March 2014.
Despite the department’s request for further evidence of the nature of the household you and your sponsor did not provide anything further.
… I must note that there is limited evidence that your sponsor resided with you at your rented residences. It is reasonable to expect that a couple who has been residing together as spouses for a significant period of time would have substantial evidence to provide spanning the entire period of claimed residence.
Furthermore, I have also noted that information obtained by the department from another government agency contradicts your claimed residence with your sponsor. Your sponsor has indicated to another government agency that since 1 August 2009 your sponsor has been residing at [exact address omitted in these reasons] [Suburb 3].
… Whilst I acknowledge the statements provided by you and your sponsor, I do not consider them to be a credible explanation of the inconsistencies in the information provided to two separate government agencies. Based on the limited evidence provided I am not satisfied that you and your sponsor have been residing together as spouses.
Furthermore, I note that the statements provided in outlining the living arrangements of your sponsor’s children contradicts your claims made in previous statements in which it is stated that your sponsor’s children reside with you and your sponsor and as a result you provide support and care to these children.
Therefore, based on the limited evidence provided and information obtained by the department from another government agency, I am not satisfied that either at time lodgement or decision, you and your sponsor resided together, had established a joint household together or that you share the responsibilities of a household.
With respect to the claimed social aspects of the relationship, the delegate relevantly stated:
You and your sponsor provided Statutory Declarations written by your friends [Mr A] and [Mr B] and several photos, as evidence of the social aspects of your relationship with your sponsor.
Whilst I acknowledge the documents provided, I give them little weight as evidence that you represent yourselves as spouses to your wider group of friends, family or community, when considered against other evidence available to the department.
The information obtained by the department from another government agency indicates that your current spousal relationship has not been declared and/or recognised.[1] In response to this adverse information your sponsor has stated that it was again her ‘careless behaviour’ that resulted in not disclosing your relationship to other government agencies. Whilst I acknowledge your sponsor’s statement, I am not satisfied that this is the case. The limited documentation provided and, as a result, your inability to demonstrate the genuineness of your relationship across all the listed matters raises concerns regarding the genuineness of your relationship with your sponsor. …
As such based on all the evidence before me, I am not satisfied that the documents provided are genuine documents to evidence your relationship but rather have been provided to the department to assist in your visa application. …
[1] The Department’s letter to the applicant of 5 June 2015 stated that the Department had received information from another government agency that, since 2002, the sponsor had declared her marital status as ‘single’.
With respect to the claimed nature of the persons’ commitment to each other, the delegate relevantly stated:
whilst I am satisfied that you and your sponsor are married as evident by the provided marriage certificate, I am not satisfied that you and your sponsor are committed to each other as spouses or see your relationship as a long term one that would exist long after the intended migration outcome.
Accordingly, the delegate found that the information and evidence, submitted in support of the application, was not sufficient to demonstrate that, at the time of application on 10 July 2013, the applicant satisfied the definition of spouse under s 5F of the Act. The delegate refused to grant the visa on the basis that cl 820.211 was not met. The delegate made no findings in respect of the time of decision criterion in cl 820.221(1).
On 6 August 2015, the review applicant applied to the Tribunal for review of the primary decision. At that stage, the review applicant was unrepresented in relation to the review.
On 19 October 2016, the Tribunal (the same Member presiding as in the present case) invited the applicant to an in-person hearing set down for 5 December 2016.
On 3 January 2017, the Tribunal (the same Member presiding as in the present case) made a decision to confirm its initial decision of 8 December 2016 to dismiss the application: AAT reference number 1510650.
Subsequently, the applicant sought the judicial review of that decision.
[In] May 2022, the Federal Circuit and Family Court of Australia (Division 2) dismissed the application for judicial review: [Citation].
On 6 June 2022, the applicant appealed from that judgment to the Federal Court of Australia.
[In] May 2023, the Federal Court of Australia made orders by judgment, which amongst other things, allowed the appeal, set aside Orders 1 and 2 of the Federal Circuit and Family Court of Australia (Division 2) made on 20 May 2022 and ordered that in lieu thereof, that:
·there be an order in the nature of certiorari setting aside the Tribunal’s decision of 3 January 2017; and
·there be an order in the nature of mandamus remitting the matter to the Tribunal for determination according to law.
On 17 January 2024, the remitted matter was constituted to the presiding Member, being the same Member who had presided in AAT reference number 1510650 and made the decision on 3 January 2017.
On 22 January 2024, the Tribunal invited the applicant to an in-person hearing set down for 29 February 2024.
On 28 February 2024, the applicant wrote to the Tribunal claiming that he had been the victim of family violence and that he had applied for and been granted a divorce. He continued:
I don’t have much evidence of family violence because I was not aware that I needed to keep evidence or a record. I was living like a normal husband and wife, but my wife committed fraud and family violence and abused me.
I request that the AAT remit my case and tell the immigration department to grant me a partner visa.
I am currently married [Country] citizen wife, we are happy married couple, my wife I pregnant and our child will be Australian Citizen, My wife Australian Citizenship application also under assessment. My wife will get Australian Citizenship soon.
I request you to grant me a Partner Visa; if not, I will consider withdrawing the AAT review application.
I have already gone through a lot of stressful times and do not want to go through it again by repeating or explaining the same situation.
Later in the day on 28 February 2024, pursuant to an instruction from the presiding Member, an officer of the Tribunal called the applicant by telephone to explain that the Tribunal could not make a favourable decision on the papers. Subsequently, the Tribunal sent the applicant a withdrawal form.
On the morning of 29 February 2024, the applicant requested, in writing, the postponement of the hearing scheduled for later that morning. The letter relevantly stated:
… my wife is pregnant and I have see doctor today, and on 5 March I am travelling India with my wife. Travel plan was booked before I AAT hearing date.
If hearing date can be changed to date after 28 March will be helpful because I will be back from India.
I deserve fair chance because my fee will be waste, I can apply new partner visa because my wife Australian citizen will be approve soon but I will be required to pay $9000 for immigration fee and wait for another 1 or 2 year.
I need to buy house and if AAT remit and grant partner visa my future will be better
I deserve fair chance, my mind is not strong and in this short time I can think too much please change date after 28 march 2024[.]
The applicant provided some documents in support of some of his claims.
Later in the day on 29 February 2024, the Tribunal wrote to the applicant to inform him that the Member had agreed to postpone the hearing.
On 5 March 2024, the Tribunal wrote to the applicant, relevantly stating the following.
As you know, on 23 [sic] May 2023, the Federal Court of Australia found that the Tribunal’s confirmation decision of 3 January 2017 was affected by jurisdictional error and the matter has been remitted to the Tribunal for determination according to law.
Your case has been constituted to Member J Clarke. This is the same Member who, on 8 December 2016, dismissed your case under s 362B(1A)(b) of the Act as you did not appear before the Tribunal to give evidence and present arguments at the time and date of the scheduled hearing—Monday 5 December 2016 at 2pm. This is also the same Member who, on 3 January 2017, refused your application to reinstate the case.
Given Member Clarke’s previous procedural involvement in this review, the Tribunal considers it appropriate to enquire whether you have any objection to Member Clarke being the Presiding Member in this review. If you do, what are those objections?
Please provide your written response to this letter by 19 March 2024.
The Tribunal did not receive a response to this correspondence.
On 7 June 2024, the Tribunal invited the applicant to an in-person hearing set down for 24 June 2024. However, on 21 June 2024, the Tribunal cancelled the hearing as the Member was unwell.
On 26 June 2024, the Tribunal invited the applicant to an in-person hearing set down for 19 July 2024.
On 19 July 2024, the applicant appeared, in person, before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. That same day, the representative formally informed the Tribunal that he had been appointed as representative. The representative attended the hearing.
Before the conclusion of the hearing, the Tribunal granted the applicant further time, until 19 September 2024, to submit the required evidence in support of his family violence claim.
On 19 September 2024, the applicant submitted evidence in support of his family violence claim.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The primary criteria to be satisfied at the time of application are that the applicant is not the holder of a Subclass 771 (Transit) visa and that he meets one of the alternate requirements set out in cl 820.211(2), (3), (4), (5), (6), (7), (8) or (9): cl 820.211(1).
The Tribunal has reviewed the applicant’s movement records which also detail his visa status at various times. The Tribunal is satisfied that, at the time of application on 10 July 2013, the applicant was not the holder of a Subclass 771 (Transit) visa. Therefore, the Tribunal finds that cl 820.211(1)(a) is met.
The subclause relevant to the applicant’s circumstances is cl 820.211(2). The key issue for determination is whether, at the time of application, the applicant was the spouse of the sponsor. As has been explained, the delegate was not so satisfied.
Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. In making findings about the status of the parties’ relationship at the time of application, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.
In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 as well.
TIME OF APPLICATION REQUIREMENTS
Whether the parties were in a spouse or de facto 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.
The applicant claims that, at the time he applied for the visa and until the cessation of the relationship, he was the spouse of the sponsor who is an Australian citizen. A certified copy of the sponsor’s registered birth certificate is on the Department’s file. Based on this evidence, the Tribunal is satisfied that the sponsor is an Australian citizen by birth.
‘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 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 specific matter contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
Were the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On 24 February 2013, the applicant and the sponsor married each other in [Suburb 1], Victoria. A certified copy of the registered marriage certificate is on the Department’s file. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Were the other requirements for a spouse relationship met?
In order to make the requisite findings about the reg 1.15(3) matters and the s 5F(2)(b)–(d) requirements, the Tribunal has had regard to all the documents on the Department’s file and on the Tribunal’s file and to the oral evidence given at the hearing on 19 July 2024.
The non-disclosure certificates
A delegate of the Minister has made three non-disclosure certificates in this matter:
·a non-disclosure certificate, said to be made pursuant to s 376 of the Act on 18 August 2015;
·a non-disclosure certificate, said to be made pursuant to s 375A of the Act on 16 December 2015; and
·a non-disclosure certificate, said to be made pursuant to s 375A of the Act on 9 November 2023.
With respect to the certificate said to be made pursuant to s 376, the Tribunal must:
- assess the validity of the certificate;
- accord procedural fairness, including disclosing the existence of the certificate to the applicant, providing him with a copy of the certificate and affording him with an opportunity to make submissions about the validity or otherwise of the certificate because if the Tribunal determines that the certificate is not valid, it may disclose the documents or information to the applicant;
- if the Tribunal considers the certificate to be validly made, afford the applicant an opportunity to seek a favourable exercise of the discretion in s 376(3)(b), that is, the Tribunal’s discretion to disclose, to the applicant, the information subject to the s 376 certificate; and
- comply with the procedural code, including complying with s 359A or s 359AA, that is, giving the applicant clear particulars of information that is adverse to the case and inviting him to comment on or respond to the information.
The Tribunal’s first task is to assess validity. The certificate contains both a date and a signature by the delegate, as required by El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840.
The certificate said to be made pursuant to s 376 seeks to protect the disclosure of folios 110–112 of the Department’s file, which as the certificate states, ‘contain information provided by another government department containing personal information of the applicant’s sponsor’. The certificate states that the information ‘was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply’. The Tribunal finds that the certificate was validly made.
The Tribunal notes that the gist of this information was put to the applicant for comment or response in the Department’s letter of 5 June 2015 which was sent pursuant to s 57 of the Act. The letter relevantly stated:
The Department has received information that your sponsor is claiming to another government agency that:
·Since 2002 her marital status is ‘single’
·Since 2009 her residential/postal address is [exact address omitted in these reasons] [Suburb 3].
As was noted in the primary decision, the applicant responded in writing when given details of this information.
Having reflected on all the evidence before the Tribunal, including the applicant’s credible oral evidence given at the hearing about the relationship and also about the sponsor’s drug use, the Tribunal considers that it is plausible that the sponsor may have failed to update her details with the particular government agency through carelessness—as she declared. The Tribunal finds that the adverse information, particularised above and protected from disclosure by the s 376 certificate, is not the reason, or a part of the reason to affirm the decision under review. The Tribunal gives no weight to the information. In view of this assessment, the Tribunal did not raise the issue of the s 376 certificate with the applicant at the hearing nor provide him with a copy.
With respect to the two certificates said to be made pursuant to s 375A, the Tribunal must:
·assess the validity of each certificate;
·accord procedural fairness, including disclosing the existence of each certificate to the applicant, providing him with a copy of each certificate and affording him with an opportunity to make submissions about the validity or otherwise of each certificate because if the Tribunal determines that either certificate is not valid, it may disclose the documents or information to the applicant; and
·comply with the procedural code, including complying with s 359A or s 359AA, that is, giving the applicant clear particulars of information that is adverse to the case and inviting him to comment on or respond to the information.
Again, the Tribunal’s first task is to assess validity.
The certificate said to be made pursuant to s 375A of the Act on 16 December 2015 does not contain a signature by the delegate, as required by El Jejieh v Minister for Home Affairs (No 2). Accordingly, the Tribunal finds that it was not validly made.
The certificate said to be made pursuant to s 375A of the Act on 9 November 2023 contains both a date and a signature by the delegate, as required by El Jejieh. This certificate relevantly states:
I certify that in accordance with s 375A of the Migration Act 1958, the disclosure, other than to the Administrative Appeals Tribunal of adverse information contained in TRIM reference number(s) [Reference] of the file number [deleted], would be contrary to the public interest because:
o[Reference] contains information that disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.
As s 375A applies to the document(s)/information identified above, the AAT must do all that is necessary to ensure the document or information is not disclosed to any person other than to a member of the AAT, pursuant to s 375A(2)(b) of the Migration Act 1958.
Both certificates said to be made pursuant to s 375A seek to protect the disclosure of the same information—a dob-in from a named source. The source alleged that:
·the relationship was contrived so that the applicant may obtain Australian citizenship;
·the sponsor was paid $45,000 for the initial marriage and continues to receive monthly payments of $1,000; and
·the applicant and the sponsor do not live together.
It is unclear when the source made the allegations. However, given that the first non-disclosure certificate that was said to be made pursuant to s 375A was made on 16 December 2015, it is likely that the dob-in was made in the first half of December 2015. As will be detailed later in these reasons, the applicant gave credible oral evidence at the hearing that, around 6–7 months after the delegate’s refusal decision of 21 July 2015, the relationship had ended, and the sponsor started living with her previous partner [Mr C].
Having reflected on all the evidence before the Tribunal, including the applicant’s credible oral evidence given at the hearing, the Tribunal has formed the view that the named source made the allegations out of malice. Accordingly, the Tribunal gives the dob-in and allegations therein no weight. The information in the dob-in is not the reason, or a part of the reason to affirm the decision under review.
In view of this assessment, the Tribunal did not raise the issue of the two certificates said to be made pursuant to s 375A with the applicant at the hearing nor provide him with copies of the certificates.
The Tribunal considers that, in view of its assessment of the three non-disclosure certificates, it has complied with its obligations in respect of the three certificates to the extent necessary.
Regulation 1.15A(3) matters
The financial aspects of the relationship
Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owed any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant matters to consider when assessing the financial aspects of the relationship.
At the hearing, the Tribunal asked the applicant whether, at the time of application on 10 July 2013, he and the sponsor had been working. He said that he had held a Student visa and that he had been attending classes and that he had had a job [doing a job task] in a [workplace]. He said that the sponsor had not been working. This oral evidence aligns with his claims in his Form 80—Personal particulars for assessment including character assessment where, amongst other things, he had declared that he had been working as [an occupation] in a [factory] and in his Form 47SP—Application for migration to Australia by a partner, where, amongst other things, he had declared that the sponsor’s usual occupation was ‘mother’.
There is no evidence before the Tribunal that, when the applicant and the sponsor were in the claimed relationship, there was joint ownership of any real estate or other major assets, any joint liabilities or that one person in the relationship owed any legal obligation in respect of the other.
As noted in the primary decision, there is evidence of a joint bank account—namely a statement for the period between 15 January 2014 to 14 March 2014, and this appears to be the major joint asset. The Tribunal notes, accepts and gives some weight to the evidence of a joint bank account which was submitted to the Department.
In the sponsor’s typed, undated relationship statement, which is on the Department’s file, she stated that, ‘[f]rom the beginning of our relationship, my husband has been there supporting myself and my children in [fulfilling] any financial liabilities’. She continued, ‘[f]inancially [the applicant] manages all that because he is the family financial supporter until I am able to work as well’.
At the hearing, the Tribunal asked the applicant to explain the extent of any pooling of financial resources. The applicant gave oral evidence that the sponsor had used his money. He explained this comment further, saying that she could access and use any of the money from the joint bank account. He reiterated his earlier claim, made in his affidavit made on 29 June 2015, that, prior to receiving the Department’s s 57 letter, the sponsor had not told him that she was receiving Government benefits. He told the Tribunal that the sponsor had simply told him that her mother had given her some money. He said that he had not asked her from where she had obtained the money because in his culture that was not done. When asked whether the sponsor had ever shared any of her money with him, he told the Tribunal that she had given him some of her money, but he said that it was ‘not much’. The Tribunal notes that the joint bank account statement contains one transaction which appears to be the sponsor having deposited money into the joint bank account: the internet transfer of $357 into the account made on 11 February 2014 with the reference ‘[the sponsor]’. The Tribunal notes, accepts and gives some weight to this documentary evidence.
With respect to the basis of any sharing of day-to-day household expenses, the applicant told the Tribunal that he had wanted to have the sponsor’s name listed on their joint bills, but he said that she had said that she would attend to such matters, but he said that she had lied to him. He said that he had seen so many things over the years, including being homeless and sleeping on the streets, so he had not collected and maintained bills from the relationship. The Tribunal notes, accepts and gives some weight to the evidence of bills submitted to the Department. For example, a water bill, dated 20 May 2014, addressed to the applicant at an address in [Suburb 1] and a number of follow up letters, with various dates in the first quarter of 2014, addressed to the sponsor at the same address in [Suburb 1] about an outstanding bill from iPrimus.
To conclude this section, the Tribunal found the applicant to be credible when giving his oral evidence about the claimed financial aspects of the relationship. As has been explained, there is some documentary evidence in support of some of his claims.
The Tribunal considers that the documentary evidence of the financial aspects of the relationship could be described as ‘thin’. Notwithstanding, the Tribunal gives it weight.
The Tribunal concurs with the delegate’s observation in the primary decision that ‘the joint bank statements do not show that your wage or any funds are routinely deposited into this account’. However, the Tribunal does not agree with the delegate’s statement that the account had not been used for household expenses as there are a number of transactions listing expenditure at Coles and also transactions at Caltex and for a mobile phone. The Tribunal does not share the delegate’s view that ‘the joint bank account statements have been fabricated for the sole purpose of providing evidence to support your application’. Rather, the Tribunal takes the view that the statement is a snapshot of income deposited into and expenses paid from the joint account over a two-month period from 15 January 2014 to 14 March 2014.
It is regrettable that, at the time of this decision, there is not further evidence of the use of the joint bank account or more examples of household expenditure but the Tribunal notes that it is well over ten years since these transactions occurred and the Tribunal accepts the evidence before it (detailed later in these reasons) that the applicant has experienced trauma—including by his own account, homelessness—in the intervening years. The applicant should not be penalised all these years later for the limited number of documents to support his claims as to the financial aspects of the relationship.
In view of all the evidence before the Tribunal, the Tribunal finds that, during the claimed relationship, the applicant was the sole income earner and that the sponsor received some financial benefits from the Australian Government but that she did not disclose this source of support to the applicant until after the Department had written to the applicant about the information pursuant to s 57. In view of their limited financial means, there was no joint ownership of any real estate or other major assets, any joint liabilities and one person in the relationship did not owe any legal obligation in respect of the other. There was some pooling of finances in their joint bank account and there was some sharing of day-to-day household expenses. The Tribunal considers that the evidence of the financial aspects of the relationship—such that there is—points to the parties being in a spousal relationship at the time of application for the visa and in the period leading up to the cessation of the relationship.
The nature of the household
Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.
With respect to any joint responsibility for the care and support of children, the Tribunal notes the evidence (such as in the applicant’s Form 47SP—Application for migration to Australia by a partner) that the sponsor has two children—daughters—from a previous relationship.
In the sponsor’s typed, undated relationship statement, which is on the Department’s file, she stated that, after approximately one month of them having commenced dating, she had introduced the applicant to her children. She further stated that she had observed that ‘he was willing and committed to love and support [my children] as his own’. She continued:
The children are more my responsibility which, me as a mother want to do not have to do. [The applicant] is involved with the children but certain things and situations that needed to be dealt are done by me. This decision was made by both of us and for the fact that I have two girls that are very young.
In the applicant’s handwritten relationship statement dated 20 August 2014 he made various statements about his claimed interactions with the sponsor’s children.
In the applicant’s affidavit made on 29 June 2015 he declared that the sponsor’s two daughters were living with ‘her mother at her ex-home’.
As has already been noted, in the primary decision, the delegate had been critical that:
the statements provided in outlining the living arrangements of your sponsor’s children contradicts your claims made in previous statements in which it is stated that your sponsor’s children reside with you and your sponsor and as a result you provide support and care to these children.
At the hearing, the applicant told the Tribunal that the sponsor’s children were young—around [Age] years and [Age] years. He said that they had not lived with him and the sponsor but rather had lived with the sponsor’s mother. He explained that the sponsor’s former partner, and the father of her children, [Mr C] was a ‘bikie’ who used drugs and that [Mr C] had ‘got physical with me’, explaining that [Mr C] had ‘bashed’ the applicant. He said that [Mr C] had told the applicant not to see the daughters. The applicant said that he had feared [Mr C] and that he had not reported the incident to police.
The Tribunal sought to understand whether the applicant had provided any financial support to the sponsor’s daughters, but the applicant’s oral evidence was unclear, and the Tribunal considers that it cannot make a finding in this respect. The Tribunal notes the photograph of the applicant and the sponsor together with a young child, whom the Tribunal assumes is one of the sponsor’s daughters, at a shopping centre. However, in the absence of clear and corroborated evidence about any joint responsibility for the care and support of children, the Tribunal considers that it cannot find that, at the time the applicant applied for the visa until the cessation of the claimed relationship, the applicant and the sponsor had joint responsibility for the care and support of the sponsor’s children.
With respect to the living arrangements of the persons, at the hearing, the applicant told the Tribunal that they had first lived together in [Suburb 2]. He said that, at that time, they had a ‘casual’ relationship. He said that he had moved to a unit in [Suburb 1] and that it had been the two of them only at that property. He also said that it had just been the two of them at the second property in [Suburb 2]. He said that this was the property where he had received the delegate’s refusal email.
The Tribunal found the applicant to be credible and accepts his oral evidence about his and the sponsor’s living arrangements during the relationship. The Tribunal notes that there is some documentary evidence—albeit ‘thin’—in support of his claims.
The Tribunal notes that in the applicant’s Form 47SP—Application for migration to Australia by a partner and his Form 80—Personal particulars for assessment including character assessment, and in the sponsor’s Form 40SP—Sponsorship for a partner to migrate to Australia, they each declared that they were living together at a specified address in [Suburb 2]. The sponsor further declared that this property was a three-bedroom house, with five people living at the residence, the other occupants being friends. In support of his claim that the parties were living at this address, the applicant filed with the Department a certified copy of both sides of his Victorian driver licence; a certified copy of the parties’ registered marriage certificate which states that the specified address in [Suburb 2] was their usual residence (it will be recalled that the parties married on 24 February 2013); and a copy of a tax invoice in both the applicant’s and the sponsor’s names and at this [Suburb 2] address, dated 27 April 2013, from ‘[Motors]’ in respect of a service and repairs to a car.
The Department’s file contains a copy of a completed Residential Tenancy Agreement listing the applicant as the proposed tenant of a property in [Suburb 1]. The agreement, which was made on 1 August 2013, states that it was for a fixed period from 1 August 2013 to 31 July 2014. This agreement also stated that, at the time the applicant made the agreement, his address was the earlier-mentioned address in [Suburb 2]. The applicant also submitted, to the Department, some documents addressed to him at this address in Suburb 1]. For example, a letter from Victoria Police dated 12 March 2014 in respect of the applicant’s claim that he had been the victim of a burglary and the earlier mentioned water bill dated 20 May 2014. He submitted some documents addressed to both him and the sponsor jointly at this address: a statement for the joint bank account for the period 15 January 2014 to 14 March 2014 and a copy of a tax invoice, dated 30 January 2014, from ‘[Motors]’ in respect of work done in respect to a car. He submitted three letters addressed to the sponsor singularly at this address: letters from iPrimus in respect of an overdue bill, dated 21 January 2014, 14 March 2014 and 25 March 2014 respectively.
The Department’s file also contains a copy of a completed Residential Tenancy Agreement listing the applicant as the proposed tenant of a property in [Suburb 2]. This agreement, which was made on 9 April 2014, states that it was for a fixed period from 9 April 2014 to 8 April 2015. This agreement also stated that, at the time the applicant made the agreement, his address was the earlier-mentioned address in [Suburb 1]. The applicant also submitted, to the Department, some documents addressed to him at this address in [Suburb 2]. For example, the applicant’s National Police Certificate letter of 16 May 2014 was addressed to him at this second [Suburb 2] address. The Tribunal notes that the Department was also writing to the applicant at this address in mid-July 2014.
With respect to any sharing of the responsibility for housework, the applicant told the Tribunal that, most of the time, the sponsor asked him to do the grocery shopping as she wanted to sleep. The applicant told the Tribunal that the sponsor was addicted to the drug ‘Ice’ (crystal methamphetamine) and injectables. He said that, at the time, he had used drugs too. He said that the sponsor did the cleaning. With respect to cooking, he said that, sometimes, the sponsor shared her food with him, and he ate what she ate. The Tribunal notes that no third-party or photographic evidence has been submitted as to the claimed shared responsibility for housework. However, as is the case with respect to most Partner cases that become before the presiding Member, the Tribunal is of the clear view that the lack of corroborating evidence in this respect is not the reason, or a part of the reason, for the Tribunal to affirm the decision under review.
The Tribunal gives some weight to the evidence of the nature of the household at the time of application for the visa up until the cessation of the claimed relationship. In the Tribunal’s view, this evidence is suggestive of the parties having been in a spousal relationship at the relevant times.
The social aspects of the relationship
Whether the persons represented themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons planned and undertook joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
With respect to whether the persons represented themselves to other people as being married to each other, the Tribunal notes that the applicant submitted a number of photographs to the Department of him and the sponsor together at the ceremony to sign their marriage certificate. There were a few other people in these photographs: the celebrant; a young child, who may well be one of the sponsor’s daughters; and three men. One of the three men appears to be [Mr A] (one of the witnesses to the marriage listed in the registered marriage certificate) and one of the other two men may well be [Mr D] (the other witness to the marriage listed in the registered marriage certificate). At the hearing, the applicant told the Tribunal that his housemate had also attended the wedding. The Tribunal considers that it is likely that the third man in the photographs is the applicant’s housemate. The applicant told the Tribunal that he had not had any family attend the wedding and that the only family members of the sponsor who had been present at the wedding were her two daughters. He said that the sponsor had not disclosed the marriage to her parents but rather had told her mother that she and the applicant were in a relationship. The applicant told the Tribunal that he had met the sponsor’s mother and that, at the time, he had thought that they had a good relationship but with the benefit of hindsight, ‘I can see she racist’. He said that his parents had known that he was dating the sponsor and found out later that they were married.
The Tribunal asked the applicant whether there had been any celebration of the wedding ceremony and he said that they had arranged to go a garden but that it rained so they had had a small celebration at a friend’s place—a warehouse in [Suburb 1]. He said that the sponsor had told him that they were marrying for the applicant’s visa—specifically to reduce his student fees—and that they would celebrate the marriage later. At this stage in the hearing, the Tribunal asked the applicant whether he had been in the relationship with the sponsor for the primary purpose of obtaining a favourable migration outcome. The applicant gave oral evidence that this had not been his primary motive. He explained that, at the beginning, they had simply been boyfriend and girlfriend. He said that he had held a Student visa and had attended classes. He explained that he had married in February 2013 and had continued to be a student until mid-2014. Again, he told the Tribunal that he had not been in the relationship with the primary motive of obtaining a favourable migration outcome. Having had the opportunity to hear the applicant’s oral evidence at an in-person hearing, the Tribunal found him to be credible and accepts his oral evidence in this respect.
With respect to the opinion of the persons’ friends and acquaintances about the nature of the relationship, the Tribunal notes that the following statutory declarations were before the delegate:
· Form 888 statutory declaration of [Mr A] (friend of the sponsor’s since they were teenagers) made on 17 June 2013; and
· Form 888 statutory declaration of [Mr B] (friend of the applicant’s from India) made 24 June 2013.
As has been noted, [Mr A] is also listed, in the registered marriage certificate, as one of the two witnesses to the wedding. [Mr B] declared that he was aware of the marriage.
As has also been noted, in the primary decision, the delegate gave little weight to these two Form 888 statutory declarations because the delegate gave greater weight to the information that had been obtained from another government agency that the sponsor had not updated her marital status. However, as has already been noted, the Tribunal considers that it is plausible that the sponsor may have failed to update her details with the particular government agency through carelessness—as she declared. Accordingly, in this review, the Tribunal gives some weight to these Form 888 statutory declarations.
With respect to any basis on which the persons planned and undertook joint social activities, the applicant told the Tribunal that they had gone to the beach. He said that they had not had the finances for a holiday. The Tribunal notes that, when the matter had been before the delegate, the applicant had submitted some photographs to the Department of him and the sponsor together in different settings, including on a beach, in front of a temple and in shopping centres. The Tribunal accepts and gives some weight to this evidence.
Notwithstanding the limited evidence, the Tribunal accepts that the relationship was socially and publicly recognised by a number of people in their social circle. The Tribunal considers that the evidence of the social aspects of the relationship points to the parties being in a spousal relationship at the relevant times.
The nature of the persons’ commitment to each other
The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons drew from each other, and whether the persons saw their relationship as long-term are all matters to be considered in determining the nature of the persons’ commitment to each other.
The Tribunal has reviewed and considered the applicant’s handwritten relationship statement dated 20 August 2014 and the sponsor’s typed, undated relationship statement that was also filed with the Department. Both stated that they had first met in person on 13 March 2011 at a birthday party. The sponsor stated that the party had been for their mutual friend [Mr A] (who it will be recalled was a Form 888 declarant and a named witness to the marriage ceremony).
At the hearing, the applicant gave consistent oral evidence about the inception of the relationship. He told the Tribunal that he had met the sponsor in 2011 at his friend [Mr A]’s party. He said that they exchanged contact details and started talking to each other.
With respect to the claimed development of the relationship, the applicant gave oral evidence that, for the first 6–7 months, they were in a ‘casual’ rather than a ‘serious’ relationship. He said that, after that time, the relationship became a serious one.
The Tribunal asked the applicant when he and the sponsor had committed to each other, but he said that he was unsure. He explained that he had been quite young at the time.
100. The Tribunal asked the applicant about the parties’ decision to become engaged and to marry. The applicant gave oral evidence that he had held a Student visa and had wanted to study but that the sponsor had said to him that they should marry so that his student fees would be reduced and they could use the money to fund their family and that they would have a good life. The applicant said that he had not listened to others, had said ‘yes’ to the sponsor’s suggestion because he loved her, but he said that the sponsor had made ‘fake promises’. The Tribunal asked the applicant when he had said ‘yes’ to the sponsor’s suggestion that they marry, and he thought it was over the Christmas period in 2012.
101. The applicant gave oral evidence about the demise of the relationship, explaining that things changed in their relationship after the delegate’s refusal decision, which it will be recalled was on 21 July 2015. He said that after the decision, they both changed. He said that he had argued with her about the fact that she had been receiving Government benefits and had not told him. He said that he could not remember whether this was before or after the delegate’s refusal decision. He noted that, in the sponsor’s statement (her affidavit of 27 June 2015) she had accepted that it had been her fault for not disclosing certain details to the authorities and to him. He said that the sponsor’s ex [Mr C] came to the house and that the sponsor and [Mr C] did ‘needle drugs’ together. He said that [Mr C] started to interfere in the relationship. He said that, around 6–7 months after the delegate’s refusal decision, the sponsor started living with [Mr C]. When asked, the applicant said that he and the sponsor had divorced in 2020.
102. As has been explained throughout these written reasons for decision, the Tribunal found the applicant to be credible. The Tribunal accepts and gives some weight to the applicant’s oral evidence about the duration of the relationship and the length of time during which the persons lived together.
103. With respect to the degree of companionship and emotional support that the persons drew from each other, the applicant told the Tribunal that with the benefit of hindsight, now he sees that ‘it was stupid back then’. With respect to whether the persons saw their relationship as long term, the applicant told the Tribunal that, from his side, he had seen it as being a long-term relationship.
104. The Tribunal considers that evidence of companionship and emotional support between the parties is understandably limited given the lengthy passage of time from when the applicant applied for the visa on 10 July 2013 and when the Tribunal is making this decision, over 11 years later. As has been stated earlier, the Tribunal considers that the applicant should not be penalised all these years later for the limited number of documents to support his claims, in this case, in respect of the nature of the persons’ commitment to each other.
105. The Tribunal gives some weight to the evidence of the nature of the persons’ commitment to each other until the relationship ceased. The Tribunal considers that this evidence is suggestive of the parties having been in a spousal relationship at the relevant times.
Conclusion on time of application requirements
106. As stated above, the Tribunal is satisfied that, at the time of application on 10 July 2013, the parties were validly married, as required by s 5F(2)(a) of the Act.
107. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, at the time of application on 10 July 2013, the applicant and the sponsor:
·had a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act;
·had a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and
·were living together or were not living separately and apart, as required by s 5F(2)(d) of the Act.
108. Given these findings, the Tribunal is satisfied that, at the time the visa application was made, the parties were in a spousal relationship.
However, the spouse requirement in cl 820.211(2)(a)(i) is not the only requirement in cl 820.211(2) which must be satisfied at the time of application. The sponsorship requirements in cl 820.211(2)(a)(ii) and cl 820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl 820.211(2)(d) must also be satisfied.
110. The Tribunal has reviewed the completed Form 47SP—Application for migration to Australia by a partner and Form 40SP—Sponsorship for a partner to migrate to Australia which are both on the Department’s file. From the evidence before it, the Tribunal is satisfied that, at the time the applicant applied for the visa on 10 July 2013, the applicant was sponsored by the sponsor and that cl 820.211(2)(c)(i) was met. There is no information before the Tribunal to suggest that the circumstances outlined in cl.820.211(2B) apply so the Tribunal finds that the sponsor was not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal finds that, at the time the applicant applied for the visa, cl 820.211(2)(a)(ii) was met as well.
111. The applicant’s movement records (which are on the Tribunal’s file) evidence that, at the time the applicant applied for the Partner visa on 10 July 2013, he held a Subclass 572 Student (Class TU) visa which ceased on 28 April 2014. As he held a substantive visa at the time of application, the further requirements in cl 820.211(2)(d) need not be met.
The Tribunal finds that the applicant meets the time of application requirements in cl 820.211(2). As the applicant meets the requirements of cl 820.211(2), he also meets cl 820.211(1)(b). As both cl 820.211(1)(a) and (b) are met, cl 820.211(1) is met.
TIME OF DECISION REQUIREMENTS
113. Based on the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased.
114. The next issue that arises on the evidence in this case is whether the applicant has experienced family violence committed by the sponsor, within the meaning of the Regulations.
115. Relevant family violence is defined in reg 1.21.
116. Under reg 1.23 of the Regulations, a person is taken to have experienced or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has experienced relevant family violence or an opinion of an independent expert has been given that the alleged victim has experienced relevant family violence.
117. These regulations, as relevant to this decision, are extracted in the attachment to this decision.
118. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14).
119. In the present case, the applicant is seeking to establish family violence based on a non-judicially determined claim of family violence.
Has a claim of family violence been made under the regulations?
Under reg 1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with reg 1.24 is provided.
The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes (see LIN 23/026—this new instrument commenced on 30 March 2023 and replaces IMMI 12/116).
Consideration of the applicant’s statutory declaration of 19 September 2024
122. A statutory declaration under reg 1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).
123. The Tribunal finds that the applicant’s statutory declaration of 19 September 2024 meets the requirements of reg 1.25(1) and (2).
Consideration of evidence specified in LIN 23/026
124. Legislative Instrument LIN 23/026 specifies a minimum of two items of evidence from a list in the Schedule to the instrument and that not more than one of each type may be presented. Two of the items listed are:
·any of the following made by a social worker who is acting in their professional capacity: report; letter; statutory declaration; and
·any of the following made by a psychologist who is acting in their professional capacity: report; letter; statutory declaration.
Statutory declaration and report made by social worker [Ms E]
125. In this review, the applicant submitted a statutory declaration made by [Ms E], a self-described Qualified Social Worker and an Accredited Mental Health Social Worker, on 17 September 2024 together with her ‘Independent Social Worker Report’ dated 17 September 2024 and a copy of her CV.
126. Amongst other things, the legislative instrument requires that a social worker’s evidence:
(a) state that the alleged victim has made a claim of family violence;
(b) state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and
(c) identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
127. Notwithstanding the fact that [Ms E] stated, on page 3 of her report, that ‘[t]he perpetrator of violence is [Ms F]’ (emphasis added) and this person appears to be unrelated to the present case, the Tribunal considers that other areas of the report provide information from which the identity of the alleged perpetrator—[the sponsor]—can reasonably be inferred. Indeed, on page 7 of her report she stated:
It is my professional opinion:
· [The applicant] was a victim of domestic violence and has suffered the abuse in their marriage relationship with [the sponsor]. I believe that [the applicant] is being honest and genuine about his circumstances and the events which occurred during their relationship.
· It is my professional opinion that [the applicant] has suffered family violence as defined by the Migration Regulations. …
· The domestic and family violence has had significant impact on [the applicant] on his mental health, as he is diagnosed with severe anxiety and PTSD and is currently attending psychological therapy and treatment.
128. The Tribunal finds that [Ms E]’s ‘Independent Social Worker Report’ dated 17 September 2024 fulfils the requirements of LIN 23/026.
Confidential Report made by [Mr G] on 15 September 2024
129. In this review, the applicant submitted a signed confidential report made on 15 September 2024 by [Mr G], who claimed to be a Registered Psychologist with Australian Health Practitioner Regulation Agency.
130. Amongst other things, the legislative instrument requires that a psychologist’s evidence:
(a) state that the alleged victim has made a claim of family violence; and
(b) state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and
(c) identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
131. The Tribunal finds that [Mr G]’s confidential report made on 15 September 2024 fulfils the requirements of LIN 23/026.
Conclusion
132. Therefore, the evidence presented meets the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23.
Has the applicant suffered family violence?
133. At the hearing, the applicant told the Tribunal that he feared the sponsor and her former partner [Mr C]. He said that the relationship deteriorated when the sponsor listened to [Mr C]. He said that they made jokes about his English ability and his nationality. He said that they would both ask him for money—amounts like $50 or $100—and he did not feel as if he could say no. He said that he spoke to his friends about what was happening, but he feared going to the police because of possible retribution. He recounted the burglary and theft of a laptop and speakers. He said that he thought that [Mr C] may have been responsible for the burglary and theft, but he was too scared to report that to the police.
134. The Tribunal’s experience of eliciting oral evidence from the applicant at the hearing about his family violence claim aligns with a number of observations made by the psychologist such as ‘the presence of mental health problems for [the applicant]’; ‘[The applicant’s] traumatic experiences have adversely affected his memory and attention span’ and that ‘[m]emory performance is likely to be worse for anyone who is stressed, depressed, anxious, tired or unwell’.
135. The Tribunal notes that the applicant has given further details of the claimed violence in his statutory declaration made on 19 September 2024 including declaring that there had been ‘multiple events’ of family violence, including ‘mental trauma, physical assaults, financial [abuse], and drug abuse’ and his claim that the sponsor had ‘isolated me from family in India’ by ‘[c]ontrol my phone calls to family’.
Having considered all the evidence before it, the Tribunal is satisfied, for the purposes of reg 1.23, that the applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship. As such, the applicant is taken to have suffered family violence in the relevant sense: reg 1.22.
137. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl 820.221(3).
CONCLUSION
138. 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 820 visa.
DECISION
139. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(1) of Schedule 2 to the Regulations; and
·cl 820.221(3) of Schedule 2 to the Regulations.
Justine Clarke
MemberATTACHMENT - Extract from Migration Regulations 1994
1.15A 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).
…
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.
1.22 References to person having experienced or committed family violence
(1) A reference in these Regulations to a person having experienced family violence is a reference to a person being taken, under regulation 1.23, to have experienced family violence.
(2) A reference in these Regulations to a person having committed family violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed family violence in relation to hat person.
1.23 When 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 the alleged perpetrator mentioned in this regulation.
…
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 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 or 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 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 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.
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