An (Migration)

[2018] AATA 5801

An (Migration) [2018] AATA 5801 (30 November 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chinhong An

CASE NUMBER:  1613980

DIBP REFERENCE(S):  CLF2013/2751

MEMBER:Justin Owen

DATE:30 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 30 November 2018 at 11:11am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – relationship ceased – family violence claim – evidential requirements – ministerial instrument IMMI 12/116 – social worker’s report – statutory declaration supplied by the applicant – no valid claim to consider – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 1.25; Schedule 2, cl 801.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 August 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 December 2012 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner).

3. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the applicant was not, at the time of decision, the spouse (as defined under section 5F of the Act) or the de facto partner (as defined under section 5CB of the Act) of the sponsoring partner.  

5. The applicant was represented in relation to the review by his registered migration agent.

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

   ISSUE

7. Relevantly in this case, at the time of decision, to be granted a Subclass 801 visa, the applicant must continue to be sponsored by his sponsoring partner (expect where exceptions apply).

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has taken into consideration all the evidence in the Departmental file CLF2013/2751, folio numbered 1-262 and the Tribunal’s file 1613980. 

9. On 6 September 2016 the Tribunal wrote to the applicant’s registered migration agent and advised them it had received an application for a review of the delegate’s decision to refuse to grant the review applicant a Partner visa.

10. On 26 April 2018 the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting him to comment on or respond to information by 21 May 2018.

11. On 18 May 2018 the applicant’s representative requested an extension of time to respond to the Tribunal.  The Tribunal agreed with the request and granted an extension until 13 June 2018. 

12. The applicant responded through his representative on 13 June 2018.  He conceded in his written submissions that his relationship with the sponsor had ceased and he wished to claim he was a victim of family violence perpetrated by the sponsor. 

13. On 31 October 2018 the Tribunal invited the applicant through his representative to attend a hearing to give evidence and present arguments relating to the issues in his case on 29 November 2018.  The invitation stated that if the applicant did not attend the scheduled hearing then the Tribunal may make a decision on the review without taking any further action to allow or enable the review applicant to appear before it.

14. On 13 November 2018 the Tribunal received a completed Response to Hearing invitation form that confirmed both the applicant and his representative would be attending the hearing on 29 November 2018.  (T1, Folio. 64). The form was sent to the Tribunal by the applicant’s representative.

15. On 13 November 2018 the applicant’s representative also requested that the hearing scheduled for 29 November 2018 be postponed.  He stated in his correspondence that he was planning to travel to Cambodia for a significant family event and would be away from 22 November 2018 for a month.  He said he would not be available to take a telephone call on 29 November 2018 either. (T1, Folio.65)

16. On 15 November 2018 the Tribunal contacted the applicant’s representative and, noting the dates the applicant’s representative provided, offered to move the hearing forward to 20 November 2018.  The applicant’s representative refused the offer of holding the hearing on 20 November 2018 on the basis it was too short notice.  The applicant’s representative was advised that if he declined the 20 November 2018 then the hearing would proceed as planned on 29 November 2018.    

17. On 16 November 2018 the applicant’s representative wrote to the Tribunal and confirmed the hearing date was unsuitable as it was the date of his departure.  The Tribunal notes that the applicant was offered the date 20 November 2018, not 22 November 2018. 

18. On 19 November 2018 the Tribunal wrote to the applicant’s representative again declining the applicant’s representative’s request to postpone the hearing and confirming that the hearing would be held on 29 November 2018.

19. On 22 November 2018 submissions were received by the Tribunal behalf of the applicant.

20. On 23 November 2018 the Tribunal received an email from the applicant’s representative stating he was now in Cambodia.  He stated that he had departed Melbourne on 22 November 2018 and wished to advise that his representation for the applicant’s matter was terminated.  He stated that he wished to be removed from the case and requested the Tribunal contact the applicant directly,  (T1, Folio.96)

21. On 23 November 2018 the Tribunal responded to the applicant’s representative in writing stating it had received his advice that he no longer represented the applicant.  The Tribunal wrote that as the authorised recipient, by law it was required to continue to send him correspondence in connection with the review unless and until the applicant advised otherwise (T1, Folio.100). At the time of decision the applicant has not done so.

22. Courtesy reminders of the hearing being held on 29 November 2018 were sent from the Tribunal via SMS to the mobile telephone number the applicant provided on 22 November 2018 and 28 November 2018.    

23. The applicant did not appear before the Tribunal on the day at the scheduled time and place.   The applicant did not make any further request for an adjournment or postponement of the scheduled hearing.  The applicant has not provided the Tribunal with any explanation for her non-attendance at the hearing.  Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) and the invitation has not been returned to sender.

24. In these circumstances, and pursuant to s.362B of the Migration Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    FINDINGS

25. Clause 801.221 subclause (1) of the Regulations requires that the applicant must, at the time of decision, satisfy subclause (2), (2A), (3), (4), (5) (6) or (8) of clause 801.221. Relevantly in this case, 801.221 subclause (2) requires that the applicant remains the spouse (as defined under section 5F of the Act), or de facto partner (as defined by section 5CB of the Act) of their sponsoring partner at that time. 

26. As the sponsoring partner has withdrawn sponsorship as evidenced in the delegate’s decision record provided by the applicant, the applicant in this case no longer continues to be sponsored for the grant of the visa by his sponsoring partner who in this case is an Australian citizen, who sponsored the applicant for that visa.   Accordingly the applicant does not continue to satisfy the criteria in cl.801.221(2).

27. The applicant may satisfy clause 801.221 by meeting the requirements of at least one of the subclauses (3), (4) (5) and (6).  These prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsor has ceased.  These include the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children. 

28. The Tribunal has reviewed the written submissions the applicant through his representative has provided it.

29. On 13 June 2018 the applicant’s representative made written submissions that included a statutory declaration from the applicant claiming he was the victim of ‘domestic violence’.  The submission stated the applicant was a victim of family violence perpetrated by the sponsor.  The submission referred to the breakdown of their relationship and claimed in early 2015 the applicant recalled an ‘abusing relationship and language’.  The submission stated the sponsor had been ‘very manipulative’ and had ‘abused him and intimidated him.’  The submission stated the sponsor had been unfaithful and stated the applicant ‘claims that she has used the sponsorship of permanent resident as a tool to control him and kept him in abused relationship.’ (T1, Folio 37)

30. The applicant provided a statutory declaration dated 13 June 2018 (T1, Folio 36).  He made claims of threats and intimidation and said he had lost his self-esteem.  He claimed to have ‘suffered mental health and depression’ and stated that she had fallen pregnant to another man, something the sponsor admitted in her interview with the Department in 2016.  The applicant wrote that je ‘had made arrangement to see psychologist/social worker, getting counselling.  I hope to provide further supporting evidence of me being abused by Sinourn (the sponsor) (T1, Folio.35).

31. On 22 November 2018 the Tribunal received from the applicant statutory declarations from Ms Catherine Munyanyiwa, accredited Mental Health Social Worker (AMHSW #455930) in relation to the applicant’s claim of family violence.

32. The Tribunal has reviewed the applicant’s claim to have suffered family violence as an exception.  

33. Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature.  Under r.1.22 a reference to a person having suffered or committed family violence is a reference to a person being taken under r.1.23 to have suffered family violence.  The applicant is required to provide the necessary evidence in order to establish a valid claim of family violence under Regulation 1.24(b) of the Migration Act.   The applicant is also required to provide a statutory declaration under Regulation 1.25 which deals with statutory declarations by or on behalf of the alleged victim of family violence.  The Tribunal notes that the current instrument IMMI12/166 specifies any consideration of a claim of non-judicial family violence requires that that a minimum of two different types of evidence be given along with the r.1.25 statutory declaration of the alleged victim.

34. The Tribunal has provided the applicant with the opportunity to provide appropriate evidence in order to make a valid claim of family violence. The Tribunal has provided a reasonable period of time to do so. The Tribunal wrote to the applicant over six months ago inviting him to provide information that he believed may be relevant to the exceptions such as family violence.   The applicant has provided a social worker’s report from Ms Munyanyiwa (T1, Folio101-111 & 74-93).  The Tribunal accepts that this specific piece of evidence from Ms Munyanyiwa is a type of evidence specified in the relevant instrument. 

35. The Tribunal has also reviewed the statutory declaration supplied by the applicant in June 2018.  The Tribunal on balance considers the statutory declaration is a valid statutory declaration under r.1.25.  The Tribunal considers on balance the statutory declaration sets out the allegation of relevant domestic/family violence’, as defined in r.1.21. 

36. The applicant however has not provided further evidence in the nature and form required to make a valid claim of judicially determined, or non-judicially determined family violence. This is because the applicant has not provided evidence specified by the Minister by instrument in writing for r.1.24(b) of the Migration Regulations 1994 and as specified in Schedule 1 of the instrument IMMI 12/116. He has failed to provide the evidence specified by the Minister by instrument in writing for r.1.24(b) of the Migration Regulations 1994 and as specified in Schedule 1 of the instrument IMMI 12/116 which requires a minimum of two items of evidence (and not more than one of each type of evidence). He has only lodged the one item of evidence that meets the criteria of a valid claim, the social worker’s report and statutory declaration from Ms Munyanyiwa. The applicant’s claim of family violence is not a valid claim.

37. The Tribunal has considered on the evidence before it whether the applicant meets any of the other alternative criteria. The Tribunal has reviewed the evidence and submissions the applicant has provided and considered whether this any of this evidence may be relevant to the exceptions. 

38. There is no claim made or evidence before the Tribunal that the sponsor has deceased. The applicant therefore does not meet 801.221(5). 

39. The Tribunal notes from the applicant’s submission of 12 June 2018 the claim that the sponsor gave birth to a child on 12 August 2015 but he was not the father of the child (T1, Folio.32). The Tribunal notes from the delegate’s decision record the applicant supplied that on 29 July 2015 during interviews with the Department both the applicant and sponsor advised the Department that the sponsor’s child Suntra was from a relationship with another man and he was not the father of the sponsor’s child.  There is no claim made and no evidence before the Tribunal that there are no Court orders and the applicant has any legal responsibilities in respect of the sponsor’s child Suntra.  There are no claims made or evidence before the Tribunal pertaining to Court orders or any legal responsibilities concerning any other children of the sponsor. The applicant does not meet the requirements for the exception pertaining to children.        

40. Given the evidence above the applicant does not meet the alternative criteria in cl.801.221 (3)-(6). 

41. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria cl.801.221 (2A) and (8) which rely on specific procedural scenarios that do not apply in this case.  

42. Accordingly, given all the above, the applicant does not meet cl.801.221.

43. A certificate purportedly restricting the disclosure of certain information by the Tribunal under s376 of the Migration Act was issued by the delegate on the basis that information contained in the documents was provided to the Minister, or to an officer of the Department in confidence. The Tribunal found the Certificate to be invalid. The information pertains to a Department of Human Services records relating to the sponsor. The Tribunal has not put any adverse weight on the information in the records. The Tribunal did not consider the material purportedly covered by the (invalid) s376 certificate relevant to this case. The issue in this review is whether at the time of decision the visa applicant continues to be sponsored for the grant of the subclass 801 visa by an eligible sponsoring partner, who is an Australian citizen, and if not whether any of the exceptions apply.

44. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

45. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Justin Owen
    Senior Member