Javed (Migration)
[2021] AATA 3007
•29 June 2021
Javed (Migration) [2021] AATA 3007 (29 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Adnan Javed
CASE NUMBER: 1932397
DIBP REFERENCE(S): CLF2013/213493
MEMBER:P. Maishman
DATE:29 June 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:
· cl 820.211(2) of Schedule 2 to the Regulations;
· cl 820.221(3) of Schedule 2 to the Regulations.
Statement made on 29 June 2021 at 3:28pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – genuine spousal relationship ceased – family violence claim – evidence tested before a Court – Violence Restraining Order – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 1.23; Schedule 2, cls 820.211, 820.221CASES
He v MIBP [2017] FCAFC 206STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 August 2014 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 30 August 2013 on the basis of his relationship with his sponsor, Marie Ann Baker. At that time, Class UK contained Subclass 820. 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. Relevantly to this matter the primary criteria include cl 820.211 and cl 820.221, which require that at the time of application and decision, the applicant is the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cls 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in his case.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied the applicant was the spouse of the sponsor.
On 24 December 2015, the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review and on 13 September 2019 the matter was remitted by the Federal Circuit Court for reconsideration.
The applicant appeared before the Tribunal on 25 June 2021 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form and evidence received in support of the application. The Tribunal had a copy of its earlier file (AAT number 1414431) containing the documents provided to the previous, differently constituted Tribunal. The Tribunal had a copy of the decision record of the previous Tribunal dated 24 December 2015 and a copy of the decision of the Federal Court delivered on 13 September 2019.
The Tribunal received: a submission from the applicant’s representative dated 18 June 2021; a statutory declaration declared by the applicant on 15 June 2021; additional evidence indexed from AJ1 to AJ53; statutory declarations from Swan Javed, Adil Aslam, and Sagheer Ahmad; and affidavits from Rizwana Bibi, Hussnain Javed and Nouman Javed.
The history of the application is outlined in the delegate’s decision record provided to the Tribunal, and the previously constituted Tribunal’s decision. In summary the applicant met the sponsor in August 2012 and they married on 15 May 2013. The applicant applied for the visa on 30 August 2013. Prior to the delegate making its decision, the applicant told the Department his relationship with the sponsor had ceased and he had suffered family violence perpetrated by the sponsor.
The applicant gave oral evidence about the development of his relationship with the sponsor, the sponsor’s conversion to Islam, the sponsor’s family background and the breakdown of his relationship with the sponsor. The applicant’s oral evidence was consistent with the documents, evidence and statements previously provided. The sponsor’s grandfather is a prominent West Australian figure. When questioned by the Tribunal, the applicant provided detail of the family history. The applicant could not have rehearsed his knowledge of the sponsor’s family history without having been present. The applicant’s oral evidence to the Tribunal was plausible and credible. The Tribunal is satisfied the applicant is a credible witness and accepts his oral evidence on that basis.
The prior existence of a relationship is a precondition to the assessment of family violence. The issue in the present case is whether the applicant and sponsor were in a partner relationship at the time the application was lodged and prior to the applicant suffering family violence.
Whether the parties are in a spouse or de facto relationship
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, 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 claims to be the spouse of the sponsor who is an Australian citizen.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had 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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married on 15 May 2013 as evidenced by a marriage certificate issued by the Registry of Births, Deaths and Marriages in Western Australia provided to the Department. There is nothing before the Tribunal to suggest the marriage was not valid. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
The Tribunal has had regard to the oral evidence of the applicant, the documentary evidence contained in the files and the previous Tribunal’s summary of the evidence previously heard to assess the financial and social aspects and nature of the household and the parties’ commitment to each other at the time of application.
Financial aspects of the relationship
The applicant told the Tribunal he and the sponsor took a joint lease together in June 2013. They renewed the lease in December 2013 for a further 12 months. The applicant told the Tribunal he borrowed the money to pay the rental bond on the premises in which they lived. They only received $400 returned from the rental bond of which he received $200 and the sponsor received $200.
The applicant told the Tribunal the sponsor’s Centrelink payments were affected by his earnings. He attended Centrelink with his identification documents and each fortnight he sat down with the sponsor to work out his earnings. She received around $800 per fortnight when his income was not involved in her payment, and that reduced to about $600 per fortnight taking into account his earnings.
The applicant said his inconsistent evidence to the previous Tribunal about his finances was caused by some confusion on his behalf. He says he continued to use his Commonwealth Bank account only to pay his credit card payments because he could control it. His wife contributed $300 per fortnight to him towards their $740 fortnightly rent. His wife would withdraw the full amount of her pension each fortnight, give him $300 for the rent and use the cash to pay for food and help her family. Assisting her family with cash was a common thing to do and her mother had access to her account. The joint bank account was used to pay the rent.
There is no evidence of joint ownership of assets or legal obligations owed by one party to the other. The parties had a joint liability to meet the rental payments as required by their joint lease. The Tribunal considers the combining of the applicant’s income for assessment of the sponsor’s Centrelink payments is demonstrative of pooling of the parties’ resources.
The Tribunal is satisfied the applicant and sponsor shared day-to-day household expenses, pooled their financial resources, and had a joint liability to pay their rent in accordance with their obligations under the joint lease.
The financial aspects of the applicant and sponsor’s relationship are indicative of a couple in a spouse relationship.
Nature of the household
The applicant told the Tribunal the term ‘halal’ applied to the processing of meat. The applicant agreed McDonald’s burgers were not halal, however, that did not prevent him eating fish burgers and non-meat food. For breakfast he would have a sausage and egg McMuffin without the sausage. The Tribunal accepts the applicant and sponsor shared meals together, as well as with their friends.
The applicant and sponsor rented a three-bedroom house in the expectation the applicant’s brother would join them, which he did in September 2013. The sponsor’s sisters would frequently visit and stay the night as well. They struggled to pay for their expenses so at the sponsor’s suggestion another friend, Rehman, joined them at the property.
Rehman did most of the cooking. The applicant said that while he ate the food prepared by his friends, that did not preclude his wife from sitting with them and sharing mealtime. His wife did not like spicy food and he did. The applicant said he cooked non-spicy food to be shared with the sponsor when he was not working and studying. The sponsor never cooked but learned how to make tea while they were together. The applicant said he never mowed the lawns but got someone in to do so and provided a receipt for the payment of those services. They usually did the grocery shopping together. They shared the household tasks.
The applicant and sponsor do not have children for whom they are responsible. The applicant and sponsor were jointly responsible for the tenancy at their premises and made decisions jointly about letting people stay and reside. The applicant and sponsor shared the housework, or responsibility for ensuring tasks such as lawn mowing and pool care were done, while they lived together.
The Tribunal is satisfied the nature of the household of the applicant and sponsor is indicative of a couple in a spouse relationship.
Social aspects of the relationship
The applicant’s and sponsor’s declarations to the Australian Taxation Office and Centrelink support the parties’ claim that at the time of application they presented to the broader community as a couple.
The Tribunal also attributes weight to the police records from September 2013 that demonstrated a consistent description by the applicant of the sponsor’s relationship to him as being his wife.
The applicant’s and sponsor’s families and friends have provided declarations or affidavits confirming they saw the parties as a couple. The applicant told the Tribunal his wife was uncertain of her mother’s reaction to their intention to get married. His wife was worried her mother would be angry and cause conflict. For that reason the parties married without the sponsor’s mother in attendance. As it turned out her mother was happy with the union and supportive of the relationship.
Most of the parties’ social activities involved the sponsor’s family or the applicant’s friends. The applicant and his friends did not drink alcohol.
The Tribunal is satisfied for the duration of the relationship the parties represented themselves to other people as being married to each other, their friends and acquaintances considered them to be a married couple and they planned and undertook joint social activities together.
The social aspects of the applicant and sponsor’s relationship at the time of application was indicative of a couple in a spouse relationship.
Nature of the parties’ commitment to each other
The applicant told the Tribunal the sponsor formed an interest in Islam observing him and his friends talk and pray. She asked him lots of questions and attended with an Imam to formalise her conversion to Islam. The applicant said the sponsor had her own copy of the Koran and read it sometimes.
They planned to buy a house together and then have children. They were also going to travel to Pakistan to meet the applicant’s family. The applicant says the sponsor became addicted to sniffing solvents around September 2013.
Solvent abuse caused his wife to become abusive and disrespectful to him and caused her to be destructive and violent. The applicant said he spent about seven or eight months from September 2013 trying to help the sponsor overcome her addiction to solvents. In February 2014 the police issued an interim restraining order protecting the applicant from the sponsor. She breached her order and was charged. The applicant says they stopped living together in April 2014. The sponsor initially moved to live with her mother but ended up living in a caravan park. The applicant remained concerned about her welfare and used to visit her and take food to her. Eventually he realised he was unable to assist her recovery.
The Tribunal is satisfied the applicant and sponsor shared companionship and emotional support from the time the relationship commenced. The applicant and sponsor had spoken of long-term plans but these plans were circumvented when the sponsor succumbed to solvent abuse.
The Tribunal is satisfied that at the time of application the nature of the applicant and sponsor’s commitment to each other was indicative of a couple in a spouse relationship.
Other circumstances of the relationship
Documents before the Tribunal indicate a significant history of police involvement in the relationship between the applicant and the sponsor from September 2013. The relationship between the applicant and sponsor is consistently described to, and recorded by, the police as a domestic relationship. The Tribunal finds this consistent description, and the subsequent actions of the police service on that basis, supports the applicant’s claims about his relationship.
The Tribunal considers the police reports add context to the documentary and oral evidence of the applicant. It is apparent to the Tribunal the relationship between the applicant and sponsor could not be described as harmonious from perhaps September 2013 when the police first became involved, and it notes the relationship ceased sometime after the visa application was made in August 2013, however, overall the Tribunal is satisfied that the applicant and sponsor’s relationship was genuine at the time of application.
The Tribunal has considered the documentary and oral evidence in relation to the reg 1.15A matters and the nature of the applicant and sponsor’s relationship and finds the applicant and sponsor had a mutual commitment to a shared life together to the exclusion of others, their relationship was genuine and continuing and they lived together at the time the visa application was made.
On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2)(b) – (d) are met at the time the visa application was made.
Therefore the applicant meets cl 820.211(2)(a).
The applicant recorded his spouse as his sponsor on his visa application and she has completed the requisite sponsorship form. The Tribunal accepts that the applicant is sponsored and so meets cl 820.211(2)(c). The applicant was the holder of a substantive visa, so cl 820.211(2)(d) does not apply.
Therefore the applicant meets cl 820.211(2).
The applicant claims the relationship with Marie Ann Baker, the visa sponsor, has ceased, and he has been the victim of family violence.
On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.
Under reg 1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in reg 1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence, must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14).
In the present case the applicant is seeking to establish family violence on the basis of evidence tested before a Court. Acceptable forms of Court tested evidence as set out in reg 1.23, are: a court injunction under the Family Law Act 1975; an Australian Court order for the protection of the alleged victim; or a conviction or finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim. Where such evidence is provided, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence: reg 1.23(1).
On the applicant’s claims, the only relevant form of evidence is a Court order.
The Tribunal’s file contains a copy of a Violence Restraining Order made by Perth Magistrate’s Court on 4 March 2015. The order is a final order binding the sponsor, Marie Ann Baker, and protecting the visa applicant.
The Tribunal is satisfied that a court order was made against the 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 reg 1.23 of the Regulations.
As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl 820.221(3).
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:
·cl 820.211(2) of Schedule 2 to the Regulations;
·cl 820.221(3) of Schedule 2 to the Regulations.
P. Maishman
MemberATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
1.21 Interpretation
…
non-judicially determined claim of family violence has the meaning given by subregulations 1.23(8) and (9).
relevant family violence means conduct, whether actual or threatened, towards:
(a)the alleged victim; or
(b)a member of the family unit of the alleged victim; or
(c)a member of the family unit of the alleged perpetrator; or
(d)the property of the alleged victim; or
(e)the property of a member of the family unit of the alleged victim; or
(f)the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
…
violence includes a threat of violence.
…
1.23 When is a person taken to have suffered or committed family violence?
(1)For the purposes of these Regulations:
(a)a person (the alleged victim) is taken to have suffered family violence; and
(b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.
Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.
Circumstances in which family violence is suffered and committed — injunction under Family Law Act 1975
(2)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.
(3)For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.
Circumstances in which family violence is suffered and committed — court order
(4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(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)[…] 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.
(5)For subregulation (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.
Circumstances in which family violence is suffered and committed — conviction
(6)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:
(a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or
(b)recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.
(7)For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt 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.
Circumstances in which family violence is suffered and committed — non-judicially determined claim of family violence
(8)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.
(9)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b)the alleged victim is:
(i) a spouse or de facto partner of the alleged perpetrator; or
(ii) a dependent child of:
(A)the alleged perpetrator; or
(B)the spouse or de facto partner of the alleged perpetrator; or
(C)both the alleged perpetrator and his or her spouse or de facto partner; or
(iii) a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and
(c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
(10)If an application for a visa includes a non-judicially determined claim of family violence:
(a)the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and
(ii) the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
(11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non-judicially determined claim of family violence; and
(b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.
(12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, 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.
(13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non-judicially determined claim of family violence; and
(b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
(14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence 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.
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