Ilyas (Migration)

[2023] AATA 965

Ilyas (Migration) [2023] AATA 965 (2 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Urooj Ilyas

REPRESENTATIVE:  Mr Andrew Woo

CASE NUMBER:  1903986

HOME AFFAIRS REFERENCE(S):          BCC2017/3360242

MEMBER:Stephen Conwell

DATE:2 April 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 2 April 2023 at 10:44am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – application made more than 28 days after last substantive visa ceased – relationship registered – limited evidence of financial, household and social aspects of relationship and nature of commitment – anti-social and aggressive behaviour by partner – relationship ceased and sponsorship withdrawn – family violence referred to but not formally claimed – new relationship, marriage and one child – request for referral for ministerial consideration not granted – applicant can request directly – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65, 359(2), 359C(1), 360(3), 363A, 376
Migration Regulations 1994 (Cth), rr 1.09A(3), 1.23, 1.24, 1.25, 2.03A, Schedule 2, cl 820.211(2)(c), (d)(ii), Schedule 3, criterion 3001

CASES
Hasran v MIAC [2010] FCAFC 40
He v MIBP [2017] FCAFC 206
Singh v MIBP [2016] FCCA 114

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 (Cth) (the Act).

2. The applicant applied for the visa on 14 September 2017 on the basis of her relationship with her then sponsor, Mr Mansoor Ali. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 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.

3. The delegate refused to grant the visa on the basis that the visa applicant (the applicant) did not satisfy cl.820.211(2)(d)(ii) because she did not meet Schedule 3 criterion 3001 in that she ceased to hold a substantive visa more than 28 days prior to lodging the visa application. The delegate further found that there were no compelling reasons for not applying the Schedule 3 criteria.

4. The applicant was represented in relation to the review by her registered migration agent (representative). The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

5. By email of 1 December 2022 the representative wrote to the Tribunal, stating:

   Thanks for your email. My client is agreeable to waiving her hearing rights.

   I am in the process of collating all the relevant documents re her current relationships (sic) and should be able to provide those documents in the next 7 days or so.

6. By email of 13 December 2022 the representative again wrote to the Tribunal, advising that his client had a change of mind, stating,  “My client now does NOT wish to waive her hearing rights.”

7. On 28 February 2023 the Tribunal wrote to the applicant via her representative, pursuant to s.359(2) of the Act informing her that her sponsor, Mr Ali had contacted the Tribunal to advise of the cessation of their relationship and the withdrawal of his sponsorship. The applicant was invited to comment whether her visa application fell within one of the exceptions to the requirement that an applicant continue to be the spouse or de facto partner of the sponsoring partner. The letter stipulated that the information should be received by 14 March 2023.   

8. On 3 March 2023 the Tribunal again wrote to the applicant via her representative inviting her to attend a hearing on 28 March 2023.  The invitation specifically noted that, “This invitation does not affect or cancel the request for information under certain timeframes put to you via separate letter pursuant to 359(2) of the Act.”

9. The applicant failed to provide the information within the prescribed time for responding to the s.359(2) invitation. On 15 March  2023 the Tribunal wrote to the applicant via her representative advising of the loss of hearing rights but noting that any information received by the Tribunal before a decision is made will be taken into account by the Presiding Member.

10. Where a person is invited to provide further information in accordance with subsection 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(1) of the Act. In these circumstances, the person is not entitled to appear before the Tribunal in accordance with subsection 360(3) of the Act. Of note, the effect of section 363A of the Act is that if a person has no entitlement to a hearing, the Tribunal has no power to permit the person to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

11. The Tribunal has considered the information in the delegate’s decision record dated 12 February 2019, the information provided to the Department and the information, submissions and documents provided to the Tribunal prior to, and following, the loss of hearing right.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Change of determinative issue

13. By email of 14 April 2021 the sponsor, Mr. Ali advised the Tribunal that his relationship with the applicant had ended and he had withdrawn his sponsorship of her visa application.

14. By email of  21 November 2022 the representative wrote to the Tribunal stating.

    …Considering that the review applicant’s relationship with her previous sponsor had irretrievably broken down and she is not intending to rely on the domestic violence provisions, the review applicant understands that the AAT will be compelled to affirm the Department’s decision to refuse the subject application for a partner visa.

    I am, however, instructed to seek a referral to the Ministerial Intervention Unit on the basis that the review applicant is married to her current husband who is an Australian citizen and has a child together.

    I am currently liaising with the review applicant to collate all the docs to demonstrate that the matter warrants special consideration to be afforded due to its unique and compelling circumstances…

15. The Tribunal is satisfied from this and other correspondence from the representative that the applicant was aware that her relationship with Mr. Ali had ended and he had withdrawn his sponsorship. It is also satisfied that the applicant was aware that in these circumstances the determinative issue in the merits review had changed to whether any of the exceptions applicable to an ongoing sponsorship by the sponsoring partner were relevant to her visa application. It is noted that the representative states that the applicant not intending to rely on the domestic violence provisions, however the Tribunal will assess the application against all the applicable exceptions when a sponsorship has ceased.

    s.376 certificate

16. By letter dated 1 March 2022  the Tribunal informed the applicant of the existence of a s.376 certificate on his Departmental file and explained the effect of such a certification is that the Tribunal is given discretion whether to disclose the document and/or information covered by the certificate.  The certificate pertained to ‘dob in’ information received in the Border Watch Allegations and Referral Team via web form on 14 February 2017.

17. The Tribunal informed the applicant that it had found the certificate to be invalid because the document had not been signed by the Minister, or by a Departmental officer. A copy of this certificate was provided to the applicant. The Tribunal invited the applicant and her representative to comment on the validity of the certificate. No response to that invitation or submission pertaining to the certificate or to the information it pertains to, has been received by the Tribunal.

    Is the applicant sponsored?

18. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

19. In light of the sponsorship withdrawal by Mr. Ali, the Tribunal is satisfied that the time of decision, the applicant is no longer sponsored by Mr. Ali. Where a relationship has ceased and/or sponsorship has been withdrawn, a visa may be granted in certain circumstances.  Those circumstances are:

    ·the death of the sponsor (cl.820.221(2)); or

    ·where the visa applicant and/or a dependent child of the sponsoring partner or of the visa applicant or of both of them, has suffered family violence committed by the sponsoring partner (cl.820.221(3)(b)(i); and/or

    ·the visa applicant and sponsor have custody or joint custody of, or access to at least one child and have shared rights and obligations towards that child (cl.820.221(3)(b)(ii)).

20. The Tribunal finds no evidence that the sponsor, Mr Ali, is deceased.  Therefore, the applicant does not meet cl.820.221(2).

21. The Tribunal finds no evidence that there is a child of the relationship with Mr Ali and accordingly cl.820.221(3)(b)(ii) is not applicable.

22. In the present case, the applicant concedes the relationship with the sponsor, Mr Ali has ceased.  Whilst her representative has stated in writing that the applicant does not intend to “rely on the domestic violence provisions” , it is clear from her statutory declaration dated 15 September 2022 that she claims to have been the victim of family violence perpetrated by Mr. Ali during their relationship. The issues are therefore whether the applicant was the de facto partner of the sponsor at the time of application and whether she would have continued to be the de facto partner of the sponsor but the relationship has ceased and the applicant has suffered family violence.

    Whether the parties were in a spouse or de facto relationship

23. Clause 820.211(2)(a) requires that at the time the visa application was made, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claimed to be the de facto partner of the sponsor who is an Australian citizen at the time of application.

    Are the parties in a de facto relationship?

24. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

25. In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206. The applicant has submitted evidence addressing these factors in respect of her current relationship with Mr. Murtaza Hassan, whom she married in New South Wales on 13 March 2021. However she has submitted little or no evidence addressing these factors in respect of her past relationship with her then sponsor, Mr. Ali.

    Financial aspects of the relationship

26. The Tribunal has considered any joint ownership of real estate or other assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party, and any sharing of day-to-day household expenses in assessing the financial aspects of the relationship.

27. The applicant has provided no evidence in relation to the financial aspects of her relationship with Mr. Ali. The Tribunal gives no weight to this factor when assessing if the parties’ relationship was genuine and continuing at the time of application.

    The nature of the household

28. The Tribunal has considered any joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of housework in assessing the nature of the household. In her statutory declaration, the applicant states that she arrived in Australia on a Visitor visa in January 2017 and she spent three “wonderful months together” with Mr. Ali. She later states that the parties lived together for four years until the relationship ended in August 2020.  Curiously in her statutory declaration when discussing “behavioural changes in Mr. Ali, the applicant describes how, following alleged violent conduct by Mr. Ali, the applicant  “went into [her] room and started crying..”  This suggests to the Tribunal that in the midst of setting out claims of Mr. Ali’s alleged outrageous behaviour, the applicant has unconsciously disclosed that the parties were not sharing a bedroom like a genuine de facto couple.  However the Tribunal does not place undue adverse weight in isolation on this single observation.

29. There is no claim that the parties had children together, and therefore there is no joint responsibility for their care and support.

30. The Tribunal is willing to accept that the parties did live together, however there is little evidence to show that they were doing so in the context of a genuine de facto relationship. The Tribunal therefore is willing to give some, albeit limited, positive weight to this factor of the relationship with Mr. Ali.

    The social aspects of the relationship

31. The Tribunal has considered whether the parties represent themselves to other people as being in a de facto relationship with each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake joint social activities in assessing the social aspects of the relationship.

32. The applicant mentions the social aspects of her relationship with Mr. Ali mainly in terms of her claims of his anti-social and aggressive behaviour. There is limited third party corroboration of the relationship, by way of signed written statements (though not statutory declarations) by  the applicant’s mother and a number of friends. The statements appear to be ‘template’ comments describing the genuineness of the relationship. The Tribunal gives some limited positive regard to these statements, which themselves appear to lack authenticity.

33. There are photographs of the parties together and in social settings, however in the context of the overall circumstances of this application, they appear to the Tribunal to be contrived and inauthentic.

34. Based on this limited evidence, the Tribunal is not satisfied that the parties represented themselves to other people as being in a relationship at the time of application and up until the ending of the relationship.

    The nature of the parties’ commitment to each other

35. The Tribunal has considered the duration of the parties’ relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term in assessing the nature of the parties’ commitment to each other.

36. Apart from describing the first three months of their time together as “wonderful”, much of the applicant’s description of their relationship paints Mr. Ali in a negative light – she describes him as over-bearing, jealous and prone to violent outbursts. There is little in her statements which speak to a degree of companionship and emotional support that the parties drew from each other during the life of the relationship.

37. However, the Tribunal is mindful that a fundamentally flawed relationship can also be a relationship in which the parties have a mutual commitment to a shared life together.[1] On the evidence before it, the Tribunal is not satisfied that this may be said of the applicant’s relationship with Mr. Ali.  The Tribunal is not persuaded that the applicant had a genuine, though “fundamentally flawed” relationship with Mr. Ali.

    [1] Signh v MIBP [2016] FCCA 114, [53] (Judge Riley, 1 February 2016).

38. This evidence, taken together, does not satisfy the Tribunal that the parties offered each other a degree of companionship and emotional support indicative of a genuine relationship.

    Are the parties related to each other?

39. There is no evidence before the Tribunal to suggest that the applicant and Mr. Ali are related to each other by family.

    Are the additional criteria for a de facto relationship met?

40. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

41. The applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: r.2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

42. The applicant has provided evidence in the form of a relationship certificate dated
    20 October 2017 registered in New South Wales. The relationship is therefore registered as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: r.2.03A(5). Accordingly, the 12-month requirement does not apply.

43. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

    Conclusion as to the de facto criteria

44. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time the visa application was made. The Tribunal is not satisfied that the applicant was in a genuine de facto relationship with Mr. Ali at the time the visa application was made.

45. Therefore the applicant does not meet cl.820.211(2)(a).

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

46. Any incidences of family violence that are alleged must have occurred when the spousal or de facto relationship was still in existence. As the Tribunal is not satisfied that the applicant was the de facto partner of the sponsor, Mr. Ali, the allegations of family violence pursuant to cl.820.221 (3) need not be considered. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.820.221 (2A), (3), (4), (5) or (6).

47. However in the alternative, whilst the representative has claimed that the applicant did not wish to rely upon the family violence provisions in this merits review, nevertheless, it is clear from her statutory declaration that much of her description of her relationship with Mr. Ali are allegations that she had been the victim of family violence perpetrated by him.  Accordingly, the Tribunal will assume that she intends to claim to have been the victim of family violence perpetrated by Mr. Ali.

1. The alternative issue then in this case is whether the applicant has suffered family violence committed by the sponsor within the meaning of the Regulations.

2. Under r.1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a Court has been made by the alleged victim and alleged perpetrator or evidence in accordance with r.1.24 is provided.  The Tribunal notes that the applicant did not provide evidence of a Court order or conviction to support a judicially determined claim. 

3. When an applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence,  r.1.25 requires a statutory declaration made by the spouse or de facto partner of the alleged perpetrator to support such a claim. Furthermore, the applicant is also required to present evidence as specified in the legislative instrument (IMMI12/116). The instrument attaches a schedule that specifies a range of documents that can be presented as items of evidence. The instrument specifies that a minimum of two items of evidence and not more than one type of evidence may be presented. The applicant has not provided the evidence to meet the requirements of r.1.24 in order to make a non-judicially determined claim of family violence. 

4. As such, although it is not necessary for the Tribunal to consider the claims of family violence, it does, in the alternative, find that a non-judicially determined claim of family violence has not been made under r.1.23.

5. On the evidence before it, the Tribunal is not satisfied that the requirements of cl.820.221 are met.

6. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

   Referral / recommendation to Minister

7. The applicant has submitted evidence that she married Mr. Murtaza Hassan, an Australian citizen in New South Wales on 13 March 2021.  There is further evidence by way of a birth certificate that she and Mr. Hassan are the parents of an Australian child born on 22 October 2021.  The Tribunal accepts and has regard to this evidence.

8. Further submissions include two letters from the Security Licensing Enforcement Directorate of the NSW police, one dated 15 March 2023, the other undated. In essence the letters state that the applicant will be required to provide evidence in a hearing in the NSW Civil and Administrative Tribunal (NCAT) currently listed for seven days from 22-30 June 2023. It is submitted that it would therefore be preferable for her to remain in Australia.  The Tribunal has carefully considered this submission.

9. In light of the above-mentioned submissions and all other evidence, it is requested that the Tribunal support an application for Ministerial intervention. 

10. The Tribunal has carefully considered the applicant’s case against the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.  

    DECISION

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

    Stephen Conwell
    Member