Dao (Migration)

[2018] AATA 4623

Dao (Migration) [2018] AATA 4623 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Son Dao

CASE NUMBER:  1621574

DIBP REFERENCE(S):  CLF2012/196726

MEMBER:Nicholas McGowan

DATE:12 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made 12 September 2018 at 2:14pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – non-exclusive relationship – department site visit – couple do not live together – sponsor lives with ex-partner or mother – domestic violence allegations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65, 376, 375A

Migration Regulations 1994 (Cth), r 1.15A 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 8 December 2016 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 18 September 2012. The delegate refused to grant the visa on 8 December 2016.

3. The applicant appeared before the Tribunal in a public hearing on 7 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. In this case, the applicant advised the Department that his relationship with his sponsor ceased and he has made a claim of suffering family violence perpetrated by his sponsor.

6. During the public hearing held 7 February 2018 the Tribunal explained to the applicant the limited circumstances in which an application for a partner visa can continue to be considered when the relationship has broken down. The applicant made no other claim, and having considered the alternatives during the public hearing, there is no evidence to support a finding that the applicant meets any of the alternate criteria available to applicant under the Act in his circumstances.

7. The Tribunal explained to the applicant that it would only consider his claim of having suffered family violence, if he satisfies the Tribunal that he was the spouse of his sponsor as defined under the Act: s.5F, and after having regard to the circumstances as required under the regulations: 1.15A.

8. As a matter of housekeeping the Tribunal alerted the applicant to the fact that the Department had applied a s.376 and s.375A certificate to his file. The Tribunal is of the view they are valid because the reasons stated in those certificates are relevant to the information covered, and because they clearly identify the particulars of the officer applying the certificate under delegation. The Tribunal invited the applicant’s agent to make any submission or comment in regards to the certificates. At the time of this decision, no comment or submission has been received from the applicant in regard to the validity of the certificates, notwithstanding the Tribunal granted additional time for the applicant’s agent to submit any further evidence post-hearing.

9. Further to the above, the Tribunal then put to the applicant information covered by the certificates which may be adverse. It did this formally. In particular outlined the particulars of a site visit the Department conducted to the applicant and his sponsor’s residence which concluded the parties were in a non-genuine relationship; and it put the particulars of claims in relation to the applicant entering into a contrived relationship with his sponsor for the sole purpose of migration, notwithstanding he had a girlfriend with whom he actually lived. The Tribunal made plain it had not made it mind up in regards to the information, but explained that it was required to put it formally to him. The Tribunal granted an adjournment to allow the applicant to speak with his migration agent. Upon the continuance of the review the applicant – through his migration agent, requested seven (7) working days to comment on or respond to the information formally put. The request was granted by the Tribunal.

10. The applicant’s agent responded formally via a post-hearing submission received by this tribunal. The contents of that submission and the attachments have been taken into consideration in this review.

11. During the public hearing the Tribunal asked the applicant whether the claimed family violence had commenced prior to, or after, the visit by integrity officers to his place of residence (as part of what the Department refer to as a ‘site visit’ (folio 249-251 in the Department file) which occurred on 1 August 2016. The applicant told the Tribunal that the claimed family violence first occurred after the site visit had been conducted. The Tribunal notes the site visit records that the applicant told the Officers that his sponsor and her child (to another man) ‘sleep’ separately at his mother-in-law’s house; and, told Officers that his sponsor was “still seeing” her previous partner (the father of the child) who was born during the applicant and sponsor’s claimed spousal relationship). This evidence is important because it speaks clearly to a relationship where the couple no longer live together as envisaged under the Act for such a relationship. Moreover, the applicant concedes the involvement of a third person overtly with his sponsor in a relationship with her (certainly previously intimate, and categorically as a parent of a shared child who exerts influence over when the sponsor can see the applicant – if at all, according to his own oral evidence to departmental officers).

12. The clear evidence from the applicant himself (during the public hearing held in Melbourne) is that the claimed family violence occurred after the above departmental site visit. This is confirmed by the documentary evidence and the applicant’s own post-hearing submission to this tribunal. The applicant has also provided this tribunal with documentation from Victoria Police at folios 95 and 96 of the tribunal’s file. It is clear that the crime reported by the applicant on 13 August 2018 was an incident which occurred after his relationship had broken down (as the clear oral evidence is that he was not living with the applicant since at least the date of the departmental site visit, and in his own words, when questioned about his sponsor’s ‘ex-partner’, did not deny they (his sponsor and her ‘ex’-partner) were still in a relationship despite his claimed relationship). Moreover, it was clear from his evidence that the sponsor’s ex-partner has resumed a relationship as exhibited by his influence in determining when and if the applicant could see the sponsor, if at all. It is a finding of this tribunal that the applicant’s claimed relationship had in reality ceased at least from 1 August 2016, though likely prior. It follows therefore that at the time of the alleged family violence the parties’ relationship (for the purposes of the Act) had in fact broken down. The basis for this break down is the absence and oral evidence which confirms that sponsor and applicant were no longer continuing to meet (regardless of whether they had prior) they requirement that their relationship be exclusive as contained in section 5F of the Act: 5F2(b). Accordingly, the alleged victim has not suffered relevant family violence as defined by the Act.

13. 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, the applicant cannot satisfy the requirements of a spouse or 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. Furthermore, and given all the above, there is no evidence before the Tribunal that the applicant meets any of the other alternative criteria.

14. For the reasons given, the Tribunal finds the applicant does not satisfy the criteria for the grant of the visa.

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