Cana (Migration)

[2018] AATA 5306

Cana (Migration) [2018] AATA 5306 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maricris Cana

CASE NUMBER:  1801511

HOME AFFAIRS REFERENCE(S):           BCC2017/998643

MEMBER:Justin Owen

DATE:21 November 2018 

PLACE OF DECISION:  Sydney

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

Statement made on 21 November 2018 at 12:17pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – family violence claim – evidential requirements – ministerial instrument IMMI 12/116 – minimum of two items of evidence (and not more than one of each type of evidence) – statutory declaration by the applicant – psychologist’s report – no valid claim to consider – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.22, 1.23, 1.24; Schedule 2, cls 820.211, 820.221

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2017 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner).

3. The criteria for the grant of this visa are set out in Part 820 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 in this case refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because they were not satisfied the visa applicant was not, at the time of application, 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 appeared before the Tribunal on 16 November 2018 to give evidence and present arguments.

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 820 visa, the applicant must continue to be sponsored by her sponsoring partner (expect where exceptions apply).

   EVIDENCE

8. The applicant told the Tribunal that the relationship with her sponsor had ceased. She said she and the sponsor had finally broken up in July 2017. 

9. The Tribunal sought to determine whether circumstances existed in which the applicant may continue to be considered for the grant of visa.

10. The applicant confirmed the sponsoring partner is not deceased.

11. The Tribunal asked whether there were any children from her relationship with his former sponsor.  The applicant said that there was not.  The applicant made no claims concerning the exception relating to children. 

12. The Tribunal asked whether the applicant had any claim in regards to relevant family violence perpetrated against herself by the sponsor. In response to the Tribunal’s question she said she wished to claim the family violence exception. 

    FINDINGS

13. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of decision the applicant is the spouse or de facto partner of an Australian citizen or permanent resident or eligible New Zealand citizen.  Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved.

14. As the sponsoring partner has withdrawn sponsorship as evidenced in the delegate’s decision record provided by the applicant and by the applicant in her oral evidence to the Tribunal, the applicant in this case no longer continues to be sponsored for the grant of the visa by her sponsoring partner who in this case is an Australian citizen, who sponsored the applicant for that visa.  Accordingly, at the time of decision the applicant does not continue to satisfy the criteria in cl.820.221(1).

15. The applicant may satisfy clause 820.221 by meeting the requirements of at least one of the subclauses (2) and (3).  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.

16. The Tribunal sought to determine whether circumstances existed in which the applicant may continue to be considered for the grant of visa.  The Tribunal noted the written submissions provided by the applicant including correspondence from her psychologist dated 20 January 2018 (T1, Folio.45), a statutory declaration for family violence signed by the applicant on 12 March 2018 (T1, Folio. 46-48), a statutory declaration dated 10 April 2018 from an acquaintance Mr Nicholas Stone; and screenshots of various Messenger communication between the applicant and sponsor (T1, Folio.53).  At the hearing the Tribunal invited the applicant to make a claim and provide any information she believed may be relevant to these exceptions. 

17. The applicant in response to the Tribunal’s questions stated that the sponsor was not deceased. Accordingly, at the time of decision the applicant does not meet the alternative criteria in cl.820.221(2).  

18. The applicant said there were no children in the relationship so there was no claim in relation to the exceptions involving the care of and responsibility for children.   Accordingly, at the time of decision the applicant does not meet the alternative criteria in relation to children: cl.820.221(3)(b)(i). 

19. 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.

20. 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 a statutory declaration of the alleged victim.        

21. At the hearing the Tribunal discussed the making of a formal claim of family violence.  The Tribunal stated that for it to consider a formal claim of family violence then it must be presented and submitted in the required form.  The Tribunal told the applicant that certain documents in certain forms are required and provided some examples.    The Tribunal said that for it to consider a family violence claim then written evidence must be submitted in the form of a statutory declaration and various documentation that details the incidents, the perpetrator and the victim. 

22. The Tribunal asked the applicant what was the first incidence of family violence; what were the other incidents of family violence; and what evidence did he have to support his claims. 

23. The applicant said the first incidence was in April 2017.   The applicant alleged the sponsor had become ‘verbally violent’ after he had seen some messages on her telephone and on Facebook.  He had verbally abused her and had made threats.  The applicant said she had been scared to return to the house.  She said the sponsor’s friend had also threatened her.  The applicant in April 2017 moved to a hostel.  She said she subsequently tried returning to the residence and saving the relationship but again moved out a number of times in the April/May 2017 period due to the sponsor’s behaviour.  The Tribunal notes that the applicant in her submissions said she was booked a flight out of Australia due to the threat of violence if she did not leave Australia.  To this extent the Tribunal notes the applicant did book a one-way ticket to The Philippines on 3 April 2017 to depart on 5 April 2017 (T1, Folio.69). 

24. The Tribunal asked the applicant as to other incidents of family violence.  She said there were further physical threats and she was scared to move back in with the sponsor, ultimately moving in to another property with a friend in September 2017 where she remains today.  The Tribunal notes the evidence the applicant provided of multiple abusive and intimidating texts and electronic communications from the sponsor principally to the applicant (T1, Folio.53).   The applicant said she commenced visiting a psychologist due to the depression and despair she was feeling in January 2018.  The applicant said the psychologist advised her to block the sponsor from being able to contact her via her telephone which she ultimately did so. 

25. The Tribunal asked the applicant what further evidence she had to support her claim of family violence.   The Tribunal asked, given the nature of these allegations, if she ever for instance reported any of this to the Police.  She said he did not.  She said had loved the sponsor and didn’t want him to get into any trouble with the Police.  The applicant said the sponsor had departed Australia to Ireland in December 2017 and had not returned.      

26. The Tribunal noted the letter from her psychologist.  The Tribunal asked her how often she had seen her psychologist for treatment.  She claimed in oral evidence that she had seen her five times since the first consultation in January 2018.  She said that her most recent consultation was in March or April 2018.  The Tribunal accepts that the applicant consulted the psychologist in January 2018 after receiving her notice of refusal from the Department dated 2 January 2018.

27. The Tribunal asked the applicant what other evidence she wished to submit in support of her claim of family violence.  The applicant submitted evidence of a flight booking she had made to return to The Philippines in early February 2018 (T1, Folio.74) after receiving the notification of her visa refusal.  The Tribunal notes the booking was made on the day of her refusal, 2 January 2018.  The Tribunal accepts the applicant’s claims that she intended to depart offshore after her refusal.  The applicant in oral evidence said that she instead lodged the application for review with the Tribunal after being informed that she may have had a case to make in relation to the family violence exception.  The Tribunal accepts her claim that this was what led to her lodging the application for review.

28. The applicant in her oral evidence said that most of her evidence concerning family violence was verbal.  The applicant said that she did not have enough evidence because she didn’t want to cause any issues with her former partner and sponsor. 

29. The applicant said that her company, the Metro Hotels Group, was trying to see if they could keep her in Australia as an employee.  The applicant said the Metro Hotels Group had assisted her case and asked if she wanted to remain working with them.  She said that she had been told at this stage she was not eligible to seek a visa in relation to her employment.  At the hearing the applicant provided a letter from Mr Simon Wanstall, her supervising manager at the Metro Hotels Group (T1, Folio.75).  He provided a glowing endorsement of the applicant’s contribution to the workplace, her character and her value as an employee.  The Tribunal for the purposes of this review accepts Mr Wanstall’s claims concerning the applicant.  The Tribunal has no doubt her employer would be keen to sponsor the applicant via a business visa if possible. The Tribunal accepts the applicant is a quality employee of excellent character.   However, the Tribunal is mindful that the applicant is applying for the Partner visa and the exceptions that exist if the applicant no longer remains sponsored.  It is not a business or employment visa and is not based on her employment and the assistance she provides to her employer’s business.

30. The applicant said that she had a new partner and had started a relationship in June 2018.  She said that obviously it was not possible for him to be a replacement sponsor.  

31. The applicant submitted to the Tribunal a statutory declaration from her acquaintance Mr Nicholas Stone.  Mr Stone was also listed as a witness.  He was overseas the day of the hearing.  The Tribunal attempted to make contact via telephone at the hearing but was unsuccessful in doing so.  The Tribunal notes his statutory declaration and his email to the Tribunal of 18 November 2018 (T1, Folio.77) attesting to the applicant’s claims of family violence and the verbal and psychological abuse the applicant received from the sponsor.  The Tribunal takes into account Mr Stone’s claims but nevertheless notes this evidence is not of a kind that meets the criteria for the lodgement of a formal and valid claim of family violence. 

32. 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 her to provide information that she believed may be relevant to the exceptions such as family violence.  

33. The Tribunal notes the statutory declaration concerning the family violence claim provided by the applicant dated 12 March 2018.  The Tribunal considers the applicant’s statutory declaration is a type of evidence as specified in the instrument for the making of a formal claim of valid violence under r.1.25

34. The applicant has also provided a one-page psychologist’s report from Ms Miller dated 20 January 2018. The Tribunal notes that the psychologist’s report is not in the form of a statutory declaration. The Tribunal therefore does not accept that this specific piece of evidence from Ms Miller is a type of 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. The Tribunal furthermore is of the opinion the report fails to detail the reasons for Ms Miller’s opinion.

35. Regulation 1.24(b) of the Migration Regulations 1994 and as specified in Schedule 1 of the instrument IMMI 12/116 requires a minimum of two items of evidence (and not more than one of each type of evidence) are required to make a formal claim of family violence. The Tribunal is of the firm view the psychologist’s report of Ms Miller fails to meet the requirements of the instrument. No further type of evidence specified by the Minister by instrument has been submitted in evidence by the applicant. The applicant fails to meet r.1.24(b) of the Migration Regulations 1994.

36. The Tribunal finds that the applicant has not made a formal claim it can consider of family violence. Whilst she has provided a statutory declaration under r.1.25, she has not however 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 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). Beyond her statutory declaration, she has only lodged the one item of written evidence specified by the instrument – the psychologist’s report – which itself ultimately fails to meet the requirements of the instrument. The applicant’s claim of family violence is not a valid claim.

37. Given this evidence the applicant does not meet the alternative criteria in cl.820.221(3). 

38. On the basis of the applicant’s own evidence, and the evidence on the decision record provided by the applicant, the Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 820 Partner visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicants for that visa

39. Accordingly the applicant cannot satisfy cl.820.221(1) 

40. 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. The applicant cannot satisfy cl.820.221(3). 

41. Furthermore, on the evidence before the Tribunal, the applicant does not meet any of the other alternative criteria. 

42. For the reasons given, the Tribunal finds the applicant does not satisfy the criteria for the grant of the Partner (Migrant) (Class UK) visa.

    DECISION

43. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Justin Owen
    Senior Member