Bilbie (Migration)

[2021] AATA 2638

Bilbie (Migration) [2021] AATA 2638 (20 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Timothy Bilbie

CASE NUMBER:  1716214

DIBP REFERENCE(S):  CLF2013/289196

MEMBER:Helen Kroger

DATE:20 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 May 2021 at 9:34am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship ended with sponsoring partner – unable to meet the evidentiary requirements – victim of family violence – no valid claim to consider – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.22,1.23, 1.24, Schedule 2, cl 801.221

WRITTEN STATEMENT OF DECISION AND REASONS

1. The applicant applied on 27 July 2017 to this Tribunal for review of a decision made by a delegate of the Minister for Immigration on 7 July 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) (Subclass801) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 801 visa on 18 November 2013 on the basis of his relationship with his sponsor. In summary, the delegate refused to grant the visa to the applicant because the delegate was not satisfied the relationship between the applicant and sponsor was genuine and continuing. A copy of the delegate’s full Decision record has been provided to this Tribunal by the applicant.

3. As the Tribunal had been unable to make a favourable decision in this matter based on the information before it alone, the Tribunal conducted a hearing on 4 May 2021 at which the applicant provided oral evidence and arguments in support of his application. Prior to the hearing, in a letter dated 4 March 2020, the applicant had emailed the Tribunal and provided information that his relationship with his sponsor had ceased. The applicant claimed he had suffered “domestic abuse” perpetrated by his sponsor and required additional time to provide further information in support of his application. The applicant was granted further time. For the record, the matter was re-constituted to this Tribunal Member, from another Member. Since that time, the applicant has also provided the Tribunal with an unsigned statement which recalls aspects of the parties’ relationship and explains that he and his sponsor had separated since mid-2016. This date is prior to the delegate’s refusal decision. The applicant provided the Tribunal with this statement in the form of a validly signed statutory declaration prior to the hearing on the 3 May 2021. It is apparent from the timing of these events (as outlined by the applicant himself) that the applicant did not advise the Department prior to the refusal decision being made that the relationship between himself and his sponsor had in-fact ceased. The applicant also states categorically in his statement that his sponsor was not exclusive throughout their relationship. Specifically, the applicant states, “I believe that Ivan was never faithful. I believe now that he was cheating on me from the very beginning of our relationship. It certainly seems that way given the nature of his subsequent treatment of me and my finding out about Ivan’s many hook ups with other men. I only found out about his behaviour in July 2015 and I confronted him, beginning a merry-go-round of doubt and insecurity as Ivan pursued sexual partners and I tried in vain to hold on to the man I loved.”

   ISSUE

4. In the present case the applicant claims the relationship with his sponsor has ceased, and he has been the victim of family violence perpetrated by his sponsor.

   CONSIDERATION OF CLAIMS & EVIDENCE

5. The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Department’s ‘Decision record’ dated 7 July 2017, which the applicant provided.

6. The criteria for the grant of a Subclass 801 (Spouse) visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). There are no criteria to be satisfied at the time of the application: cl.801.21. The primary criteria to be satisfied at the time of the decision are set out in cl.801.22. Clause 801.221(1) requires an applicant to meet the requirements of subclause (2), (2A), (3), (4), (5), or (6).

7. As the applicant is no longer the de-facto of his sponsoring partner, he is unable to satisfy a central requirement of subclause (2) of clause 801.221. The applicant may satisfy that clause by meeting the requirements of at least one of the subclauses (2A), (3), (4), (5), or (6). There are no claims by the applicant, nor evidence before the Tribunal, which would support a finding that the applicant may meet any of the alternate subclauses, other than his claim in respect to the family violence provisions. The applicant has claimed prior to this Tribunal’s review and before the hearing (and during the hearing itself) that he meets subclause (6).

8. Subclause (6) applies where the relationship has ceased and that either: the applicant or dependent child has suffered family violence committed by the sponsoring partner; or, there is a child to whom both the applicant and sponsoring partner have obligations in the nature of custody and/or contact/access. There is no claim or evidence that the applicant and his sponsor have any children together.

9. 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.

10. 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.  

    Has a claim of family violence been made under the regulations?

11. In this case, there is no claim (or evidence) of judicially determined family violence.

12. The Tribunal advised the applicant that further to his claim of suffering family violence perpetrated by his de-facto, the applicant is required to provide the necessary evidence in order to establish a ‘valid claim’ for family violence under Regulation 1.24(b) of the Migration Act.

13. The relevant evidentiary requirements to raise a non-judicial claim of family violence are in r.1.24. This requires a statutory declaration under r.1.25, and the type and number of items of evidence specified by the Minister in instrument IMMI 12/116.

14. The applicant has provided this Tribunal with a Statutory Declaration (in respect to his claim of having suffered family violence) as required under the legislation.

15. Further, the Tribunal notes  that the applicant has not provided the necessary two additional evidentiary documents for the purposes of meeting the requirements as any of the ‘Types of Evidence’ identified in Schedule 1 (instrument IMMI 12/116).

16. The applicant’s lawyer did not seek an extension of time to provide any further evidence, though he was free to do so. The Tribunal notes that the applicant has had ample opportunity (including the period during which hearings were cancelled or adjourned no fewer than six times to attend a hearing into his review application) to prepare his evidence and arguments and retain or seek representation.  In this respect, the Tribunal notes that almost four years have past since the applicant lodged his application with the Tribunal for review of the delegate’s refusal decision. Accordingly, given the above, a valid non-judicially determined family violence claim has not been made by the applicant.

    FINDINGS

17. At the time of decision the applicant has made neither a judicially determined or non-judicially determined claim of suffering family violence in accordance with r.1.23. Accordingly, the Tribunal has no valid claim to consider.

18. Based on the applicant’s own evidence, the Tribunal is satisfied that at the time of decision the applicant and his sponsor are not in a relationship which is genuine and continuing as required for the purposes of the Act under s.5F(2)(c) or s.5CB(2)(b). Accordingly, relevantly, the applicant cannot satisfy the requirements of a de facto under the Act. Therefore, at the time of decision the applicant cannot satisfy the criteria in cl.801.221(2)(c) for the grant of the visa.

19. Furthermore, and given all the above, there is no evidence before the Tribunal that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).

20. For the reasons above, the Tribunal finds the applicant does not satisfy the criteria for the grant of the Subclass 801 visa.

    DECISION

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

    Helen Kroger

    
    

    Member

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

    Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).