Manaloto (Migration)

[2022] AATA 1935

Manaloto (Migration) [2022] AATA 1935 (14 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sarah Manaloto

REPRESENTATIVE:  Mr Jesus Icao (MARN: 9367993)

CASE NUMBER:  1810329

HOME AFFAIRS REFERENCE(S): BCC2015/1716135 BCC2017/562918

MEMBER:Russell Matheson

DATE:14 June 2022

PLACE OF DECISION:  Sydney

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 820.221(3) of Schedule 2 to the Regulations.

Statement made on 14 June 2022 at 2:30pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased and non-judicially determined claim of family violence – statutory declarations by applicant and specified persons – opinion of independent expert taken as correct – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.23, 1.24, 1.25, Schedule 2, cl 820.211(3)

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 Home Affairs on 26 March 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a female national of the Philippines born in December 1983. She applied for the visa on 12 June 2015 based on her relationship with her sponsor, Mr Luke Gordon who is an Australian citizen. The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.221 because the applicant’s relationship with the sponsor ended and the delegate was not satisfied the applicant met any of the alternative criteria for visa grant. The applicant seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant and review applicant were given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal on 17 January 2022 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her migration agent who attended the video hearing.

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

   Relevant law

7. 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).

8. The applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence.

   Was the applicant the spouse or de facto of the sponsor?

9. The Tribunal notes the delegate was satisfied the parties were in a de facto relationship at the time of application. The applicant provided a reasonable amount of documentary and photographic evidence with the primary application and limited additional evidence to the Tribunal. The applicant submits that the parties first met online on a dating site in November 2013 and their relationship developed over a short period of time. She further states they met for the first time in December 2013 and entered a de facto relationship from February 2014 living together at Elderslie NSW in a shared arrangement with the sponsors sister until their relationship ceased in August 2016 allegedly because of family violence occurring.

10. The applicant provided evidence of the parties operating a joint account with Westpac Bank. The applicant gave evidence that the parties both contributed to the account and it was used to pay for the couples day-to-day living expense and household bills. The parties shared the rent with the sponsors sister and the sponsor paid for the rent from his personal account. The sponsor made the applicant the beneficiary of his last will and testament and his superannuation. The Tribunal accepts that there was preparedness by the applicant and sponsor to share the day-to-day living expenses and pool their financial resources before the breakdown of the relationship.

11. The applicant submitted that the parties shared the household responsibilities and duties with the sponsor and his sister. The applicant gave evidence that she did the cooking and cleaning, and the sponsor did the washing and outside chores. The applicant provided a letter from a real estate agent verifying their living arrangements in Elderslie NSW. The parties provided a reasonable amount of correspondence addressed to them individually and in joint names at the address mentioned. The applicant provided photographs of the parties in a household environment. The Tribunal accepts that the parties established a household together.

12. The applicant provided photographic evidence of the parties’ social activities with family and friends and evidence of travel together. The applicant provided detailed and consistent evidence in relation to the social activities of the couple. The applicant provided statutory declarations from the sponsors sister and a friend of the applicant attesting to the genuineness of the relationship. The Tribunal accepts that the parties planned and undertook joint social activities together during their relationship. The Tribunal accepts that the relationship was socially recognised by family and friends and they represented themselves to other people as being in a de facto relationship before the relationship ceased.

13. The applicant submitted that the parties were committed to their relationship and planned to get married after the applicants divorce in June 2016. The applicant stated that she regarded the relationship as long-term and the parties had planned their future together. The sponsor made the applicant the beneficiary of his last will and testament and his superannuation.

14. The applicant provided consistent and detailed evidence regarding her relationship with the sponsor; the Tribunal found the applicant to be generally a credible witness. Having regard to all the circumstances of this relationship, the Tribunal is satisfied, on balance, that the applicant and the sponsor did have a genuine de facto relationship before its breakdown.

15. Based on the above the Tribunal is satisfied that the applicant and sponsor met the definition of spouse/de facto in s.5CB of the Act

16. Based on the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Migration Regulations 1994 (the Regulations).

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

17. In the present case the applicant is seeking to establish family violence occurred based on a non-judicially determined claim of family violence.

18. 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.

19. 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 IMMI 12/116).

20. 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).

21. The applicant has completed a statutory declaration (after 24 November 2012) under         reg 1.25 which set out the allegation of family violence and named her sponsor who she alleges committed relevant family violence. The applicant has also provided two statutory declarations by competent persons as per reg 1.25.

22. The Tribunal is satisfied that 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?

23. The applicant gave oral evidence at the hearing and provided a written submission to the Tribunal. The applicant claims that she suffered family violence from 2014 until August 2016 when her relationship with her sponsor ceased because the sponsor had become more violent towards her. She further states the relationship ended because the sponsor had an affair with another woman, and she wanted assurances that he would stop seeing other women and that he accused her of having relationships with other men. The applicant submits that on 3 August 2016 she received a text message from the sponsor telling her to move out of their home. The applicant stated that she received a text from the sponsors sister whom they were living with at the time telling her that the sponsor would not be home that night and she could come and collect her personal belongings.

24. Having considered all the evidence before it, the Tribunal was not satisfied for the purposes of reg 1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert. On 1 June 2022 the independent expert provided an opinion that the applicant had suffered relevant family violence

25. The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose and was properly made. Under reg 1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.

26. Where the independent expert’s opinion is that a person has suffered relevant family violence, at least part of the violence that led to that opinion must have occurred while the married or de facto relationship existed. The Tribunal has considered the nature of the applicant’s relationship with the sponsor as detailed above (paragraphs 9 to 16). On balance, the Tribunal is satisfied that the applicant and the sponsor were in a relationship until August 2016 when the relationship broke down.

27. The Tribunal is satisfied the violence, or part of the violence, occurred during the relationship. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for the purposes of reg 1.22.

    Conclusion

28. 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

29. 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 820.221(3) of Schedule 2 to the Regulations.

    Russell Matheson
    Member

    
    

    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.