Da Silva Araujo (Migration) - [2023] AATA 3077

Da Silva Araujo (Migration) [2023] AATA 3077 (22 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Kerlen Da Silva Araujo
REPRESENTATIVE:  Mr Nigel James Dobbie
CASE NUMBER:  1830676
HOME AFFAIRS REFERENCE(S):          CLF2014/41268 CLF2018/359196
MEMBER:Moira Brophy
DATE:22 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 22 September 2023 at 11:35am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – relationship ceased – genuine prior partner relationship – allegation of family violence – applicant left Australia – joint account with limited transactions – shared residence – separate international travel – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 801.221; r 1.09
CASES
Guven v MIMA [2006] FMCA 311
He v MIBP [2017] FCAFC 206
Liu v MHA [2019] FCA 1925
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 October 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 14 March 2014 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). 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 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.
A subclass 820 visa was granted on 20 May 2015.
On 25 January 2016, the Department wrote to the applicant requesting further information for the consideration of the subclass 801 visa. The sponsor contacted the Department and requested an extension of time to provide the requested information, as he said the applicant was in Brazil. A response was received on 22 August 2016.
A telephone interview was conducted with the sponsor on 30 July 2018.
A natural justice letter was sent on 30 July 2018 along with a request for further documentation. A response to the natural justice letter was received on 3 August 2018 and a response to the request for further documentation was received on 28 August 2018.
On 2 October 2018, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221 because he was not satisfied the parties continued to be in a genuine and continuing relationship.
The applicant sought review of the delegate's decision. A copy of the delegate’s decision was provided to the Tribunal.
On 19 October 2018, the applicant advised the Tribunal that the relationship had broken down and she had been the victim of family violence.
The applicant appeared before…

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.

Continue reading Da Silva Araujo (Migration)

Details

AGLC: Da Silva Araujo (Migration) [2023] AATA 3077
Case: [2023] AATA 3077
Decision Date: 22 September 2023

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Partner (Residence) (Class BS) visa, subclass 801, against a decision to affirm the refusal of her visa application. The applicant claimed that her relationship with the sponsor had ceased and that she had been a victim of family violence. The court was required to determine whether the applicant met the criteria for the visa, particularly in light of the cessation of the relationship and her claims of family violence.

The primary legal issue was whether the applicant could satisfy the requirements of subclause 801.221(6) of the Migration Regulations 1994. This subclause allows for the grant of a visa where the applicant's relationship with the sponsor has ceased, but the applicant would otherwise have met the criteria for the visa under subclause 801.221(2) or (2A), and has suffered family violence committed by the sponsor. The court had to consider whether a genuine partner relationship, as defined by the Act, had existed prior to the relationship's cessation, and if that relationship would have otherwise met the relevant criteria.

The court reasoned that for subclause 801.221(6) to be satisfied, there must have been a genuine and continuing partner relationship that would have met the requirements of subclause 801.221(2) or (2A) but for its cessation. This principle was supported by case law, including *Guven v MIMA* [2006] FMCA 311 and *Liu v MHA* [2019] FCA 1925, which established that a claim under this subclause cannot succeed if a genuine and continuing relationship never existed. The Tribunal accepted that the applicant was not the de facto partner of the sponsor at the time of the decision and that the relationship had broken down, meaning the applicant did not meet the criteria in cl 801.221(2)(c). The Tribunal found that the applicant's claims of family violence did not overcome the fundamental requirement that a genuine partner relationship must have existed prior to its cessation.

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

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

At the time of application, the parties stated they met on 11 February 2012 at a pub in Bondi. They commenced a de facto relationship on 20 February 2012. They committed to a long-term relationship to the exclusion of all others on 8 January 2013 and the applicant moved in to live at the sponsor’s apartment. They registered their relationship with NSW Registry of Births Deaths and Marriages on 9 April 2014.CONSIDERATION OF CLAIMS AND EVIDENCE In the present case, the applicant claims that the relationship with her sponsor has ceased, and she has been the victim of family violence. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the time of the fist hearing. There is no dispute and the Tribunal accepts that the applicant was not, at the time of the Tribunal’s decision, the de facto partner of the sponsor. It was not disputed that the relationship had broken down. The applicant therefore does not meet the criteria in cl 801.221(2)(c). The applicant has claimed that she meets the criteria in cl 801.221(6)(c)(i) which states as follows:(6)An applicant meets the requirements of this subclause if:(a) the applicant is the holder of a Subclass 820 visa; and(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and(c) either or both of the following circumstances applies:(i)either or both of the following:(A)the applicant;(B)a dependent child of the sponsoring partner or of the applicant or of both of them;has suffered family violence committed by the sponsoring partner; The applicant claims that she meets these criteria on the basis that she was in a genuine and continuing relationship with the sponsor, the relationship between herself and the sponsor has ceased and that she has suffered family violence committed by him. The provisions of cl 801.221(6) indicate that a relevant genuine partner relationship within the meaning of the Act must have existed prior to the relationship ceasing, and the applicant would have otherwise met the criteria in cl 801.221(2). This means that, while any claims of family violence do not have to cause the cessation of the relationship, any relationship which has ceased must have been one which would have otherwise met the requirements of the relevant legislation. This approach was approved in the matter of Guven v MIMA [2006] FMCA 311 (Hartnett FM, 24 March 2006) at [22]-[26]. In that case, Harnett FM found that when considering the grant of a Subclass 100 Spouse (Residence) visa, it was open for the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a genuine relationship within the meaning of the Regulations and only where it found that such a relationship existed was it required to make a further finding in relation to claims of domestic violence (as it was then described). This approach was further considered in the matter of Liu v MHA [2019] FCA 1925 where the FCA agreed with the primary judge’s reasoning that cl 801.221(6) could not be satisfied if there was never a genuine and continuing relationship at [19], [21] and [22].

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant was born on 10 November 1977 in Brazil. The applicant was previously in a defacto relationship with Cleso Fenini from 15 June 1993 to 20 November 2010. Her mother, five sisters and one brother reside in Brazil. The applicant first came to Australia on 20 February 2007 as the holder of a Student (subclass 570) visa. She was granted a Student (subclass 572) visa on 23 April 2009 and she departed and re-entered Australia on Student visas a number of times in the following years. On 14 March 2014, she lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) and a Partner (Residence) (Class BS) (Subclass 801) visa on the grounds of being in a spousal relationship with an Australian citizen, Mr Jonathon Gabriel Tapp, who lodged a sponsorship in support of the application. The sponsor was born on 25 January 1975 in Australia. At the time of application, the parties stated they met on 11 February 2012 at a pub in Bondi. They commenced a de facto relationship on 20 February 2012. They committed to a long-term relationship to the exclusion of all others on 8 January 2013 and the applicant moved in to live at the sponsor’s apartment. They registered their relationship with NSW Registry of Births Deaths and Marriages on 9 April 2014.CONSIDERATION OF CLAIMS AND EVIDENCE In the present case, the applicant claims that the relationship with her sponsor has ceased, and she has been the victim of family violence. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the time of the fist hearing. There is no dispute and the Tribunal accepts that the applicant was not, at the time of the Tribunal’s decision, the de facto partner of the sponsor. It was not disputed that the relationship had broken down. The applicant therefore does not meet the criteria in cl 801.221(2)(c). The applicant has claimed that she meets the criteria in cl 801.221(6)(c)(i) which states as follows:(6)An applicant meets the requirements of this subclause if:(a) the applicant is the holder of a Subclass 820 visa; and(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and(c) either or both of the following circumstances applies:(i)either or both of the following:(A)the applicant;(B)a dependent child of the sponsoring partner or of the applicant or of both of them;has suffered family violence committed by the sponsoring partner; The applicant claims that she meets these criteria on the basis that she was in a genuine and continuing relationship with the sponsor, the relationship between herself and the sponsor has ceased and that she has suffered family violence committed by him. The provisions of cl 801.221(6) indicate that a relevant genuine partner relationship within the meaning of the Act must have existed prior to the relationship ceasing, and the applicant would have otherwise met the criteria in cl 801.221(2). This means that, while any claims of family violence do not have to cause the cessation of the relationship, any relationship which has ceased must have been one which would have otherwise met the requirements of the relevant legislation.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.Moira BrophyMemberATTACHMENT - Extract from Migration Regulations 19941.09A 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).