Kennedy (Migration)

[2019] AATA 3973

Kennedy (Migration) [2019] AATA 3973 (26 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fitzgerald Kennedy

CASE NUMBER:  1722947

HOME AFFAIRS REFERENCE(S):           BCC2015/3376115

MEMBER:Ann Duffield

DATE:26 August 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 26 August 2019 at 2:31pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – marriage of three months – relationship ceased – sponsorship withdrawn – divorce filed – counter-claim of family violence – non-judicially determined claim – hospital admission form – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25; Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 November 2015 on the basis of his relationship with his sponsor. 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 (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 did not satisfy cl.820.221 because the delegate was not satisfied that the applicant was the spouse of the sponsor within the meaning of the Act or that any of the exceptions to the requirement to meet those criteria, applied.

4. The applicant appeared before the Tribunal on 26 August 2019 to give evidence and present arguments.

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

   BACKGROUND

6. The applicant is a citizen of the United States of America born on 28 February 1978 in Liberia. The sponsor is a citizen of Australia born on 8 February 1980.

7. The parties claimed to have first met in July 2014 and were married on 3 October 2015. They lodged the application subject to this review on 23 September 2017.

8. On 2 February 2016 the sponsor advised the Department that she withdrew her sponsorship of the applicant because he abused her emotionally and physically and he had moved out of the family home in December 2015.

9. The applicant was charged with assault against the applicant on 12 December 2015 and an intervention order with full non-contact with the sponsor against the applicant. The charges were subsequently withdrawn. The sponsor filed for divorce in October 2017 and that was granted later that year.

10. The sponsor counter-claimed that he was financially, emotionally, socially and psychologically abused by the sponsor in his response to the Department in August 2017. Neither party has produced any evidence to support a judicial or non-judicial claim of domestic violence perpetrated by the other against them.

11. The sponsor has subsequently entered into a de facto relationship with an Australian permanent resident and they have a child together who was born on 2 December 2017.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Act and, if not, whether any of the exceptions, including death of the sponsor, responsibilities towards children of the relationship or domestic violence, apply.

    Whether the parties are in a spouse or de facto relationship

13. Clauses 820.211 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.

14. ‘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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

15. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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?

16. The Tribunal has considered the financial aspects and social aspects of the parties’ marriage as well as the nature of the household and of their commitment to each other.

17. On the applicant’s own admission, and on the facts before the Tribunal, it is clear that the parties only lived together for a period of around three months after the applicant arrived in Australia. He claims he had no income and no records were kept of the monetary gifts he gave to the sponsor during their relationship. Given that they lived together for such a short period of time there was no time to produce the kind of financial interdependency that would typify a marriage.  There is no claim by the applicant that in their short marriage they entered into any joint financial responsibilities, secured any assets or liabilities or otherwise shared financial resources.

18. Equally, whilst the Tribunal accepts that the parties have provided photographs of themselves at their wedding with others and may have been known as a couple. However there is no other evidence before the tribunal to lend any significant weight to this aspect of the parties’ relationship.

19. The parties lived together for three months as a married couple. Their marriage ended about five weeks after they lodged their application for the visa subject to this review. Whilst the applicant claims that even after he moved out of the marital home he and the sponsor continued to have a marriage, there is no other supporting evidence for this statement. The Tribunal asked him how he could consider that a marriage of just three months met the statutory requirements that the tribunal be satisfied that he and the sponsor had a long term and mutual commitment to a shared life together he said that it could not. However he said that his wife’s abuse towards him started even before he came to Australia and his intention was to commit to their marriage. He claimed it was not his fault that the marriage broke down and he remained hopeful that they would reconcile for a long time.

20. The Tribunal is mindful that the applicant has subsequently entered into another relationship with an Australian permanent resident and there is a child of that relationship. The Tribunal asked the applicant if there was any reason why he and his family could not return to the United States and he said that he had made his life in Australia and wanted to stay here. He has been here for four years and lived in the United States for 10 years. As this is not a review of the applicant’s current relationship, the Tribunal is of the view that the new relationship and the child of that relationship are irrelevant to its consideration of the application under review.

21. The Tribunal does not accept that a marriage of three months meets the requirements of the Act and Regulations. The Tribunal is not satisfied that there is sufficient evidence to support a claim that the parties were in a genuine, continuing and exclusive spousal relationship envisaged by the Act.

22. Even if the Tribunal is wrong, the issue that then arises in whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

23. Under r.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 upon 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 r.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: rr.1.23(3), (5), (7), (12), (14).

24. In the present case the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence.

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

25. 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.

26. The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes.

27. A statutory declaration under r.1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).

28. The Tribunal provided the applicant with a list of the types of documents specified by the Minister for the purposes of supporting a non-judicial claim of domestic or family violence  that he could submit in order to support a non-judicial claim of domestic violence. The applicant told the Tribunal that he did not have a Medicare card at the time and no resources to obtain psychologists or doctor’s reports. He said that he provided a hospital admission form dated 28 January 2016.

29. The Tribunal put to the applicant that the hospital admission form merely records that he had some chest pains, was treated with painkillers before being discharged after tests established that he was fine. The Tribunal put to him that his hospital admission for chest pains did not constitute evidence to support a claim of domestic or family violence.

30. The Tribunal asked the applicant if he could provide any of the documents on the list and he said that he talked to someone in the community that was a social worker at the time. The Tribunal asked if that person was working as a social worker at the time he spoke to them and he said that he was a social worker. He said there were no contemporaneous statements or reports available from anyone.

31. The applicant told the Tribunal that he didn’t know what his rights were at the time or how he should go about things such as collecting evidence for a domestic or family violence claim.

32. In the Tribunal’s mind the applicant has had two years or so to provide evidence that he was subject to domestic or family violence. He speaks English and had every opportunity to seek advice about his situation. The Tribunal does not accept that if the applicant suffered domestic or family violence as he alleges he would not have sought some assistance from a family violence centre, a doctor or the police.

    CONCLUSIONS

33. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision.

34. The Tribunal has considered the applicant’s claim of domestic violence out of abundant caution and is not satisfied that there is any evidence that meets the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23.

35. Given the above conclusions, the applicant does not meet the requirements of cl.820.221 and cl.820.211 for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    DECISION

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

    Ann Duffield
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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).