Ma (Migration) - [2025] ARTA 148

MA (MIGRATION) [2025] ARTA 148 (3 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Hy Yen Ma
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2211693

Tribunal:General Member P Maishman
Place:Perth
Date: 3 February 2025
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; and
·cl 820.221(3) of Schedule 2 to the Regulations

Statement made on 03 February 2025 at 4:27pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – relationship with the visa sponsor has ceased – victim of family violence – they were in a genuine and continuing relationship – a non-judicially determined claim of family violence has been made under reg 1.23 – statutory declarations from the sponsors father – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024, s 79
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, rr 1.15, 1.22, 1.23, Schedule 2, cls 820.211,820.221
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 August 2022 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 10 May 2019 on the basis of her relationship with her sponsor, Hong Chau Huynh. 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 820.221 which require that at the time of application and decision, the applicant to be 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: cl 820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.221(4) because sponsorship required by the applicant was not approved.
The applicant appeared before the Tribunal on 14 January 2025 to give evidence and present arguments.
The applicant was represented in relation to the review.
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 and sponsorship form. The applicant is a Vietnamese national…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ma (Migration)

Details

AGLC: Ma (Migration) [2025] ARTA 148
Case: [2025] ARTA 148
Decision Date: 3 February 2025

CaseChat Overview and Summary

Ma, a Vietnamese national, appealed a decision by the Department of Home Affairs to refuse her application for a Partner (Temporary) (Class UK) visa under subclass 820. The Tribunal was tasked with determining whether the applicant was the spouse of an Australian citizen at the time of the visa application and whether she had suffered family violence, which would allow her to meet the visa requirements despite the cessation of the relationship with the visa sponsor. The core legal issues were whether the applicant was in a genuine and continuing marriage with the sponsor and if she had indeed experienced family violence.

The Tribunal found that the applicant had provided sufficient evidence to establish that she had been in a genuine and continuing relationship with the sponsor at the time of the visa application, including statutory declarations, psychological and social work reports, and other supporting documents. Furthermore, the Tribunal concluded that a non-judicially determined claim of family violence had been made, as the applicant had presented evidence that she had suffered relevant family violence. The Tribunal noted that the sponsor's father had provided statutory declarations, but these were not deemed sufficient evidence on their own to establish the applicant's claims. Given these findings, the Tribunal determined that the matter should be remitted to the Minister for reconsideration, with specific directions to consider the remaining criteria for the visa.

The Tribunal remitted the visa application to the Minister for reconsideration, directing that the applicant meets the criteria for a Subclass 820 visa, specifically clauses 820.211(2) and 820.221(3) of Schedule 2 to the Regulations. The hearing took place on 14 January 2025, with Mrs Thao Phuong Hai Nguyen representing the applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 and sponsorship form. The applicant is a Vietnamese national and met her Australian citizen husband in June 2018. They married in May 2019. The Department’s file contains evidence of the applicants marriage, letters of support from friends and family, copies of joint bank account statements and various other documents in support of the existence of the applicants spouse relationship. The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The delegate noted it had written to the applicant inviting her to comment on information that the sponsorship of her partner visa application was not approved and not received a response. The delegate refused the visa application because, at the time of its decision, the sponsorship of the application was not approved. The Tribunal invited the applicant to attend a hearing and the applicant’s response indicated a witness could give evidence about her estranged husband and when domestic violence occurred. On 19 December 2024 the Tribunal issued a direction pursuant to s 79(1) of the Administrative Review Tribunal Act 2024 requiring the applicant to provide evidence relevant to her claimed to have suffered family violence. On 7 and 8 January 2025 the applicant provided evidence including her statutory declaration that her relationship with the sponsor ended on 7 August 2021, a number of supporting statements from friends, a psychological report dated 16 December 2024 prepared by Dr Sandra Nguyen, and a social work assessment report dated 26 December 2024 from Natalia Agus. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence. The prior existence of a spouse/de facto relationship and whether the relationship has ceased is a precondition to an assessment of 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). 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?

Decision

Reasons for decision

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; and·cl 820.221(3) of Schedule 2 to the Regulations.Date(s) of hearing: 14 January 2025Representative for the Applicant: Mrs Thao Phuong Hai Nguyen (MARN: 2418386)ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 19941.21 InterpretationIn this Division:independent expert means a person who:(a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and(b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.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.statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.violence includes a threat of violence.…1.23 When is a person taken to have suffered or committed family violence?(1)For these Regulations, this regulation explains when:(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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.