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 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?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
The applicant gave the Department a marriage certificate certifying she married the sponsor in May 2019 and their marriage was registered at the Registry of Births, Deaths and Marriages, Western Australia. There is no evidence to suggest the marriage is 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 had regard to the matters contained in reg 1.15A(3).
The Tribunal considered the evidence of the financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.
The Department’s file contains a number of bank account statements showing the applicant and sponsor held a joint bank account at the time of application. The Department received a copy of an informal lease agreement showing both the applicant and sponsors names as joint tenants which confirms their joint responsibility to pay the monthly rent. The applicant and sponsors gas supply account were also in joint names. The applicant gave the Tribunal a number of receipts for regular funds she provided to the sponsor while he was imprisoned.
The applicant told the Tribunal she was responsible for the management of their funds because the sponsor was not reliable with handling money. The applicant said it was their intention to save money to buy a house but were unable to establish savings with her husband on Centrelink payments. The applicant does not recall if she was recorded as the sponsor’s spouse with Centrelink because it was a long time ago. The applicant said she and the sponsor had no joint assets and no joint loans or liabilities. Any income they received went towards the day-to-day household expenses and paying for rent and bills.
The Tribunal give some weight to the financial aspects of the applicant and sponsors relationship as demonstrative of a couple in a genuine spouse relationship at the time of application. The Tribunal observes the volume of documents in support of the financial aspects of the relationship is scant, however the relationship between the parties was relatively new, and notwithstanding their marriage, for financial interaction was not developed.
The Tribunal considered the nature of the applicant and sponsor’s household, including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.
The parties do not have any children together or from previous relationships and do not have child minding responsibilities. The Tribunal accepts the applicant’s oral evidence they lived in a share house arrangement and shared a bedroom and common areas equally. The applicant cooked and the sponsor cleaned up. The parties shared the household tasks of cleaning.
The Tribunal gives some weight to the evidence of the nature of the applicant and sponsor’s household in forming its opinion of the applicant and sponsor’s spouse relationship.
The Tribunal considered the social aspects of the visa applicant and review applicant’s relationship including whether they represent themselves to other people as being married; the opinion of their friends and acquaintances about their relationship; and whether they plan and undertake joint social activities.
The Department’s file contains various photographs and screenshots from the applicant and sponsors Facebook pages demonstrating their marriage to their friends and broader community. A number of photographs on those pages show the applicant and sponsor in various situations with friends and family, sharing meals, and at family birthdays. The Department received a number of statutory declarations from the applicant’s friends confirming the relationship.
The Tribunal is satisfied the social aspects of the applicant and sponsor’s relationship is indicative of a genuine de facto relationship. They represented themselves to other people as being married and their friends, family and acquaintances considered them to be a couple. They plan and undertake joint social activities.
The Tribunal considered the nature of the applicant and sponsor’s commitment to each other – including the duration of the relationship; the length of time they lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
The applicant recorded on her visa application that the sponsor was supportive of her as an overseas student especially when she missed her parents and was homesick. The sponsoring courage to her to study and she supported him with working hard to get work experience in order to find a better paying job. The applicant recorded that when her studies were finished they planned to buy a house of their own and open a café. The applicant supported the sponsor when he was imprisoned by visiting him and providing financial means for him to buy things.
The Tribunal attributes some weight to the nature of the applicant sponsor’s commitment to each other as indicative of a couple in a spouse relationship.
Having considered the circumstances of the relationship as set out in reg 1.15A(3), the Tribunal finds that at the time of application, the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others, they were in a genuine and continuing relationship, and they did not live separately and apart on a permanent basis.
On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made.
There is no evidence that the sponsor is prohibited by cl 820.211(2B) from being a sponsoring partner and the applicant meets cl 820.211(2)(a).
The sponsor completed the requisite sponsorship form, and the Tribunal accepts that the applicant was sponsored and so meets cl 820.211(2)(c) and, as the applicant was the holder of a substantive visa, cl 820.211(2)(d) does not apply.
Therefore, the applicant meets cl 820.211(2).
On 7 January 2025 the applicant completed a statutory declaration claiming her relationship with the sponsor finished on 7 August 2021. The Tribunal accepts this declaration is evidence the applicant and sponsors relationship ceased.
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.
In the present case the applicant is seeking to 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?
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).
Under reg 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 reg 1.24 is provided.
The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes (see LIN 23/026).
A statutory declaration under reg 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: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).
The Tribunal received a completed, signed and witnessed Form 1410 – Statutory Declaration for Family Violence Claim dated 7 January 2025 from the applicant. The applicant alleges she is the victim of family violence committed by her spouse and sponsor Hong Chau Huynh. She alleges the sponsor physically hit assaulted her and she endured both physical and emotional abuse during the time they lived together.
The Tribunal is satisfied the applicant's statutory declaration dated 7 January 2025 meets the requirements of reg 1.25.
The applicant gave the Tribunal a psychological report prepared by Dr Sandra Nguyen on 16 December 2024. Dr Nguyen says the applicant saw her approximately monthly since July 2024 and the appointments are ongoing. Dr Nguyen declares the applicant has detailed her relationship history with the sponsor and claimed he perpetrated family violence against her. Dr Nguyen has expressed her professional opinion that the applicant has experienced family violence including verbal, emotional, psychological, financial and physical abuse perpetuated by the sponsor during the course of their marriage.
The Tribunal finds the psychological report dated 16 December 2024 and made by Dr Nguyen, a qualified psychologist, acting in her professional capacity and meets the evidentiary requirements of LIN 23/026 as one item of evidence from Schedule 1.
The applicant gave the Tribunal a social worker report prepared by Ms Natalia Agus on 26 December 2024. The original document given to the Tribunal was not on Ms Agus’ professional letterhead or professional letterhead from her organisation. The Tribunal received a copy of the report on professional letterhead after the hearing. Ms Agus says the applicant was referred to her by the psychologist and an assessment was undertaken on 14 December 2024; a subsequent session on 18 December 2024; and a future session on 22 January 2025. Ms Agus reports the applicant has detailed her relationship background with the sponsor and claimed he perpetrated family violence against her. Ms Agus expressed her professional opinion that the applicant has experienced family violence and as a consequence suffers low self-confidence and struggles to cope with trauma and hurtful words and actions; is experiencing sleep difficulties and reduced appetite due to the traumatic events that happened; and suffers from a deterioration of her mental and physical health and well-being due to the manipulative and abusive factions perpetrated by the sponsor.
The Tribunal finds the social work dated 26 December 2024 and made by Ms Agus, a qualified social worker, acting in her professional capacity meets the evidentiary requirements of LIN 23/026 as one item of evidence from Schedule 1.
Therefore, the evidence presented meets the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23.
Has the applicant suffered family violence?
The Tribunal was concerned the applicant claims to have ceased her relationship in August 2021 but did not disclose that information to the Department. It is of concern to the Tribunal that the applicant did not is close the cessation of her relationship with the sponsor until she was invited to attend hearing at the Tribunal in December 2024 and subsequently prompted to make the relevant claim and provide the relevant evidence. The tribunal further noted that despite her claim to have separated in August 2021 the applicant continued to declare the sponsor as her spouse for the full year on her 2022 income tax return.
The Tribunal accepts the applicant’s explanation that she did not know what to do. She was in a state of trauma and had little social support in Australia. Her current representative explained her options and she approached her general practitioner and psychologist for assistance before knowing that the Tribunal hearing was imminent. She has not sure why the sponsor is still declared as her full year spouse on her tax return but notes she is not forced so would consider, for the purposes of the question on the tax return, that she continues to have a spouse. The applicant said she did not raise this with her tax agent but would be doing so in the future.
The Tribunal formed the view the applicant was genuine and honest in her evidence to the Tribunal based on her demeanour and authentic answers when questioned about potential inconsistencies. The applicant’s evidence, the sponsor’s criminal history and statutory declarations from the sponsors father persuade the Tribunal the applicant suffered family violence committed by the sponsor during the period of their marriage while they were still in a relationship.
Having considered all of the evidence before it, the Tribunal is satisfied, for the purposes of reg 1.23, that the applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship.
Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for reg 1.22.

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; and
·cl 820.221(3) of Schedule 2 to the Regulations.
Date(s) of hearing:  14 January 2025
Representative for the Applicant:             Mrs Thao Phuong Hai Nguyen (MARN: 2418386)
ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
1.21 Interpretation
In 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.