Emaas (Migration)

[2018] AATA 198

Emaas (Migration) [2018] AATA 198 (5 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Myrna Emaas

CASE NUMBER:  1701214

DIBP REFERENCE(S):  BCC2015/2140574

MEMBER:Nicholas McGowan

DATE:Monday 5 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application with the direction the applicant meets cl.820.211 and cl.820.221(3).



Statement made on 05 February 2018 at 9:56am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Family violence – Court order against sponsor

LEGISLATION
Migration Act 1958, s 368
Migration Regulations 1994, r 1.23, Schedule 2 cl 820.211, 820.221

Written statement of decision.

1. This statement fulfils the Tribunal’s obligations under the Migration Act: s.368. While it sets out the Tribunals’ decision (page 1); the reasons for it; and findings on material matters (including the evidentiary basis), to fully appreciate this decision, a third-party would need to listen to the audio from the public hearing and appraise themselves with the documentary evidence in the Department of Immigration (‘department’) and Tribunal case files.

2. The applicant applied for the temporary partner visa on 27 July 2018. The Minister refused that application on 4 January 2017 as the Department of Immigration had received information that the applicant’s relationship with her sponsor had broken down. The applicant claimed she had suffered family violence perpetrated by her sponsor. The applicant appealed the Minister’s refusal decision to this Tribunal. The applicant was invited to attend a public hearing conducted by the Tribunal in Melbourne on February 5, 2018 to present arguments and provide evidence.

3. To be granted a Subclass 820 visa, the applicant must meet, at the time of decision, one of the alternate requirements contained in the subclauses listed in cl.820.221(1) of Schedule 2 to the Regulations. The issue in the present case is whether the applicant meets one of those requirements, namely cl.820.221(3). Clause 820.221(3) requires relevantly that the applicant would continue to meet the requirements of cl.820.211(2), (3), (4), (5) or (6) except that the relationship between the applicant and the sponsor has ceased, and at the relevant time, the applicant, or a dependent child of the sponsor or of the applicant or both of them has suffered family violence committed by the sponsor: cl.820.221(3)(a), 820.221(3)(b)(i).

4. A person is taken to have suffered family violence if under r.1.23 (4); (a) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and, (b) the order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter. Further, under r.1.23(5), for sub regulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

5. The Tribunal had careful regard to assessing whether the applicant was at the time of application the spouse of her sponsor (including the regulatory considerations, and the requirements of the Act). The Tribunal is satisfied from all the evidence, including the information contained in the Department’s file, and the documentary evidence submitted to the Tribunal since, including the oral evidence from the applicant herself, that at the time of application, the applicant was the spouse of her sponsor. It has come to this finding because the evidence, including that provided by the sponsor who withdrew his sponsorship, all points to a relationship consistent with the requirements of the Act. Accordingly, cl.820.211(2) is met.

6. In regards to the time of decision criteria, the Tribunal has had regard to whether the applicant meets one of the alternate requirements contained in the subclauses listed in cl.820.221(1), namely cl.820.221(3). The Tribunal has had regard to a copy of an Intervention Order taken out against the sponsor issued by the Magistrates’ Court of Victoria on 31 May 2016 (Case No.F14028111). The Tribunal notes from the Order record that the Notations cite that the ‘respondent’ (the sponsor) was served with a copy of the Application and Summons. It is clear that the sponsor had an opportunity to respond to that application prior to the Order being made.

7. Given the evidence above, the Tribunal is satisfied that a court order was made against the applicant’s sponsor for the protection of the applicant in relation to violence that occurred whilst the parties were in the relationship, after the sponsor had an opportunity to be heard or otherwise make submissions to the court. Therefore, family violence is taken to have occurred under r.1.23(4) of the Regulations.

8. As the relationship (as at the date of decision) between the applicant and her sponsor has ceased and the applicant has suffered relevant family violence committed by her sponsor, the applicant meets the requirements of cl.820.221(3).

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