Mahakumbura Herath Mudiy (Migration)

[2018] AATA 894

Mahakumbura Herath Mudiy (Migration) [2018] AATA 894 (10 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pradeep Nishantha Mahakumbura Herath Mudiy

CASE NUMBER:  1609815

DIBP REFERENCE(S):  CLF2016/1509 CLF2016/40723

MEMBER:Nicholas McGowan

DATE:Wednesday 10 January 2018

PLACE OF DECISION:  Melbourne

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



Statement made on 10 January 2018 at 11:00am

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Relationship with sponsor ceased – Not in a genuine and continuing relationship – Domestic Violence victim – A valid non-judicially determined family violence claim has not been made by the applicant

LEGISLATION
Migration Act 1958, ss 5F, 5CB, 65
Migration Regulations 1994 rr 1.22, 1.23, 1.24 Schedule 2 cl 801.221

APPLICATION FOR REVIEW          (Subclass 801 VISA)

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 June 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 June 2013 on the basis of his relationship with his sponsor.

3. The Tribunal has before it the Department’s files relating to the applicant; its own files; and the audio recording from the public hearing conducted by this Tribunal on 2 January 2018.

   BACKGROUND

4. The applicant was granted a Partner (Temporary) subclass 820 visa on 11 June 2013 on the basis of his spousal relationship with his sponsor.

5. According to the Minister’s delegate’s decision, which the applicant provided to the Tribunal, the applicant’s sponsor contacted the Department on 18 September 2015 and advised she wished to withdraw as sponsor as her relationship with the applicant had broken down. The applicant does not dispute that the relationship has ceased.

   ISSUE

6. In the present case the applicant claims the relationship with his sponsor has ceased, and he has been the victim of family violence.

   CONSIDERATION OF CLAIMS & EVIDENCE

7. As the applicant in this case is no longer the spouse of his sponsoring partner, he is unable to satisfy a central requirement of subclause (2) of clause 801.221. The applicant may satisfy that clause by meeting the requirements of at least one of the subclauses (2A), (3), (4), (5), or (6). There are no claims by the applicant or evidence before the Tribunal which would support a finding that the applicant can meet any of the subclauses other than subclause (6), which the applicant claims he meets.

8. Subclause (6) applies where the relationship has ceased and that either: the applicant or dependent child has suffered family violence committed by the sponsoring partner; or, there is a child to whom both the applicant and sponsoring partner have obligations in the nature of custody and/or contact/access. There is no claim or evidence that the applicant and his sponsor have any children together.

9. Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature. Under r.1.22 a reference to a person having suffered or committed family violence is a reference to a person being taken under r.1.23 to have suffered family violence.

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

10. The applicant is required to provide the necessary evidence in order to establish a valid claim for family violence under Regulation 1.24(b) of the Migration Act.

11. The applicant has provided a statutory declaration (Form 1410) from himself as required (Department file, folios 106-108).

12. The Tribunal notes that the applicant has provided other voluminous documents which relate to his past relationship with his sponsor (and her child), and more broadly the applicant’s claimed contribution to Australia, the Australian community, and more broadly examples of his professional endeavours, including book published, media reports and news articles. Where they speak to the criteria under review, they have been taken into consideration; however, ostensibly the majority of these documents are not relevant to this review given the applicant’s claim of having suffered family violence perpetrated by his sponsor.

13. The Tribunal notes, the registered psychologist’s letter is not in the form of a Statutory Declaration as is required under the Regulations.

14. The Tribunal further notes the two medical letters from Dr Roshan Mendis (dated 15/10/2015 and 14/12/17). Neither letter satisfies the requirements of the legislative instrument as neither identifies the alleged victim (and) details the physical injuries or treatment for mental health that is consistent with the claimed family violence (Note: no family violence is referred in either letter from Dr. Mendis).

15. Accordingly, given neither of the two pieces of evidence meet the Evidentiary Requirements as set out in Regulation; a valid non-judicially determined family violence claim has not been made by the applicant.

    FINDINGS

16. At the time of decision the applicant has made neither a judicially determined or non-judicially determined claim of suffering family violence in accordance with r.1.23. Accordingly, the Tribunal has no valid claim to consider.

17. Based on the applicant’s own evidence, the Tribunal is satisfied that at the time of decision the applicant and his sponsor are not in a relationship which is genuine and continuing as required for the purposes of the Act under s.5F(2)(c) or s.5CB(2)(b). Accordingly, the applicant cannot satisfy the requirements of a spouse or de facto under the Act. Therefore, at the time of decision the applicant cannot satisfy the criteria in cl.801.221(2)(c) for the grant of the visa.

18. Furthermore, and given all the above, there is no evidence before the Tribunal that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).

19. For the reasons above, the Tribunal finds the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

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