KHAN (Migration)

[2018] AATA 325

KHAN (Migration) [2018] AATA 325 (31 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Owais Ather Khan

CASE NUMBER:  1620470

DIBP REFERENCE(S):  CLF2013/120828

MEMBER:Helena Claringbold

DATE:31 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2) of Schedule 2 to the Regulations; and

·cl.801.221(6) of Schedule 2 to the Regulations.

Statement made on 31 January 2018 at 3:03pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Relationship ceased – Family violence – Court Order

LEGISLATION
Migration Act 1958, ss 5CB, 376
Migration Regulations 1994, rr 1.09A, 1.23, Schedule 2 cl 801.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 29 May 2013, Mr Owais Ather Khan, the applicant applied for a Partner (Residence) (Class BS) visa. The application was made on the basis of his de facto relationship with Mr James Tony Tini-Joseph, the sponsor.

2. On 28 November 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant was the de facto partner of the sponsor. As a result the applicant did not satisfy cl.801.221(2) and cl.801.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations). This is a review of the delegate’s decision.

3. On 16 January 2018, the applicant appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border protection’s case file, CLF2013/120828 folios numbered 1-1297 and the Tribunal’s case file 1620470, folios numbered 1-336 and the evidence given at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the applicant was the de facto partner of the sponsor as defined in s.5CB of the Migration Act 1958 (the Act). In the present case the applicant claims his relationship with the sponsor has ceased and he has suffered family violence perpetrated by the sponsor.  

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in Karachi, Pakistan in 1988. His parents live in Pakistan.  He has two brothers.  In January 2009, he entered Australia as the holder of a tourist visa. On 8 January 2015, the applicant was granted a Subclass 820 visa.

8. The sponsor was born in Otahuhu, Auckland, New Zealand in 1980. His parents and two brothers live in New Zealand.  He has three other siblings living in Australia.

9. On 2 December 2012 the parties met. On 23 December 2012, the parties’ de facto relationship began.  On 7 March 2013, the parties registered their relationship in New South Wales.

   Is the applicant the spouse of an eligible citizen?

10. The Tribunal is satisfied that the sponsor, at the time of visa application and decision is an eligible New Zealand citizen who had turned 18. 

    Are the parties in a de facto relationship?

11. As the parties are not validly married, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. 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).

12. 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) of the Regulations which is attached to this decision.

13. On these aspects, the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows.

    CLAIMS AND FINDINGS

14. Notwithstanding the finding of the delegate that the applicant did not meet cl.801.221, during the review process and the course of its hearing, the Tribunal had careful regard to assessing all of the evidence as to whether the applicant was the de facto partner of the sponsor. The Tribunal is satisfied from the evidence, including the information contained in the Department’s file and from evidence submitted to the Tribunal since, including the evidence prior to, at and post Tribunal hearing that, the applicant was the de facto partner of the sponsor and the parties’ de facto relationship ceased.

    Are the requirements of cl.801.221 namely cl.801.221(6) met?

15. 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 the Tribunal on review is satisfied the alleged victim has suffered relevant family violence.  Relevant family violence is defined in r.1. 21 of the Regulations.

16. 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 r.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: r.1.23(1).

17. On the applicant’s claims, the only relevant form of evidence is a court order.  The applicant has provided a copy of a Final Apprehended Domestic Violence Order (AVO) Case Number 2017/00109240 made by Newtown Local Court of NSW on 17 July 2017. The order stated that the defendant was present in the court when the order was made.  The order does not contain the signature of the defendant, Mr James Tony Tini-Joseph. There is no specific notation that the defendant had an opportunity to be heard, however, the Tribunal notes that a provisional AVO was made on 1 May 2017, the sponsor was served with the application and the application was adjourned for final hearing to take place.  Mr James Tony Tini-Joseph was issued a notice to attend the Newtown Local Court of NSW Court for the AVO Final Order, Apprehended Domestic Violence Order.  The Tribunal notes that the defendant was present in court.

18. Therefore, the Tribunal is satisfied that a court order was made against Mr James Tony Tini-Joseph for the protection of Mr Khan in relation to violence that occurred while the parties were in the relationship, after Mr James Tony Tini-Joseph 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 of the Regulations.

    Other considerations

19. At the Tribunal hearing the applicant was told about the following: a non-disclosure certificate issued pursuant to s.376 of the Migration Act 1958 (the Act) in relation to certain material which is on the Department of Immigration and Border Protection’s (the Departmental) file. The Department has sought to restrict the disclosure of folios 252 and 253 on the basis that disclosure of the information contained in these folios would be contrary to the public interest because it would reveal confidential departmental investigation methods used to detect breaches of migration law. The Tribunal considers that the s.376 certificate is valid. The applicant was invited to comment on the validity of the certificate. The core of the information relevant to the certificate was put to the applicant under the relevant provision.

20. The Tribunal is satisfied that the applicant would meet the requirement of cl.801.221(2) except that the relationship between the applicant and the sponsor has ceased and the applicant has suffered relevant family violence committed by the sponsor. As a result, the applicant meets the requirements of cl.801.221(2) and cl.801.221(6).

21. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

22. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    · cl.801.221(2) of Schedule 2 to the Regulations; and

    · cl.801.221(6) of Schedule 2 to the Regulations.

    Helena Claringbold
    Member

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

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

    Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

    Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).