Alves Magalhaes (Migration) - [2025] ARTA 142

ALVES MAGALHAES (MIGRATION) [2025] ARTA 142 (5 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Geraldo Magela Alves Magalhaes
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2119975

Tribunal:General Member Downes
Place:Brisbane
Date: 5 February 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa

Statement made on 05 February 2025 at 2:58pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship with sponsor ceased – family violence claim – evidence from social worker provided – not a valid type of evidence for the purposes of establishing a non-judicially determined family violence claim – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.21, 1.23, 1.24, Schedule 2, cl 801.221
CASES
MICMSMA v Gupta [2022] FCAFC 51
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 December 2021 to refuse to grant the visa applicant (the applicant) a Partner (Residence) (Class BS) Subclass 801 visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 June 2019 based on his relationship with the visa sponsor. At that time, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa because the applicant did not meet cl 801.221 of Schedule 2 to the Regulations because the relationship between the applicant and the visa sponsor had ended and there was no evidence before the delegate that the applicant satisfied any alternative criteria for the grant of the visa.
The applicant appeared before the Tribunal on 5 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former employer.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUE AND LAW
In the present case, the applicant claims the relationship with the visa sponsor has ended, and that he experienced family violence. The applicant seeks to establish family violence based on a non-judicially determined claim of family violence.
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. Relevant family violence is defined in reg 1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence,…

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.

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Details

AGLC: Alves Magalhaes (Migration) [2025] ARTA 142
Case: [2025] ARTA 142
Decision Date: 5 February 2025

CaseChat Overview and Summary

The case involves a 41-year-old Brazilian man who applied for a Partner (Residence) (Class BS) visa, subclass 801, based on his relationship with an Australian citizen. The relationship ended in August 2021, and the visa was refused as the applicant did not provide evidence to support his application after the relationship breakdown. The applicant later claimed family violence, but the evidence provided was deemed insufficient. The Tribunal was tasked with determining whether the relationship existed and if a valid family violence claim was made.

The legal issues before the Tribunal were whether the applicant's relationship with the visa sponsor was genuine and ongoing and if the evidence submitted constituted a valid non-judicially determined family violence claim. The Tribunal had to assess the applicant's evidence against the legislative criteria for the subclass 801 visa and the specific requirements for a family violence claim. The Tribunal noted that it was not obligated to disclose its reasoning in advance of its decision on the adequacy of evidence.

The Tribunal found that the applicant was the spouse of the visa sponsor before the relationship ended, but the evidence provided to support the family violence claim was insufficient. The evidence from a social worker was not a valid type of evidence for the purposes of establishing a non-judicially determined family violence claim. The Tribunal concluded that the applicant did not meet the essential criteria for the visa, and thus affirmed the decision not to grant the visa.

No further orders were made by the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There is no general obligation on the Tribunal to point out what evidence is required to meet the family violence provisions, or to disclose its thought processes in advance of its decision as to why or whether evidence provided is deficient: Gansham v MICMA [2023] FedCFamC2G 633 at [87]–[91], MIAC v Pham [2008] FCA 320 at [51]–[54], Lawani v MIAC [2013] FCCA 114, at [53] – [55], Karsten v MIBP [2015] FCCA 534.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a 41-year-old man from Brazil. He applied for the visa that is the subject of this review application based on his relationship with the visa sponsor, a 47-year-old Australian citizen by birth. The visa sponsor was once divorced with one child from her previous marriage. According to the visa application, the applicant and the visa sponsor met in December 2017 and married in December 2018. At the time, the applicant was in Australia on a student visa to study English. On 21 August 2021, the visa sponsor notified the department that the relationship between the applicant and the visa sponsor had ended and that she wished to withdraw her sponsorship. By letter dated 26 October 2021, the department notified the applicant that it had received information that the relationship between the applicant and the visa sponsor had ended, and invited the applicant to provide additional information to support consideration for the grant of the visa despite a relationship breakdown. The applicant did not respond to the department’s letter. Accordingly, on 14 December 2021, the department refused the applicant’s visa on the basis that the relationship between the applicant and the visa sponsor had ended and the applicant had not made any claim, or submitted any evidence, to suggest that any other circumstances which would allow for the grant of the visa applied. The applicant first indicated his intention to make a family violence claim on 5 December 2024, via an email from his representative. On 20 December 2024, the Tribunal issued a direction to provide documentary evidence regarding the family violence claim by 29 January 2025. The direction was provided with an attachment which outlined, among other things, the evidence required to make a non-judicially determined family violence claim.Did the requisite relationship exist? The applicant’s representative submitted that:Please note that the applicant’s relationship was genuine and continuing, as proved to the Department and confirmed by receiving the approval of the 820 visa on 09 March 2021.Therefore, there is no need to discuss the merits of their genuine relationship and focus only on the non-judicial evidence provided in this matter to confirm that the applicant was a victim of domestic violence and should have his permanent visa subclass 801 granted on the basis of the below legislation. I do not accept this submission. It is inconsistent with the case law referred to at paragraph ‎10. However, I have considered the documentary evidence submitted to the department and I am satisfied, based on this evidence, that the applicant was the spouse of the visa sponsor before the relationship ended.Has a claim of family violence been made under the regulations?

Decision

Reasons for decision

For these reasons, the applicant does not meet the requirements of cl 801.221(6)(c) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.Date(s) of hearing: 5 February 2025 Representative for the Applicant: Mr Carllo Ettore Oliveira Castriota

Ratio Decidendi

Legal Principle Established

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