MITEI (Migration)

MITEI (Migration) [2019] AATA 6474 (4 November 2019)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Carolyne Chelagat MITEI
CASE NUMBER:  1807387
DIBP REFERENCE(S):  BCC2015/3334908
MEMBER:Christine Kannis
DATE OF DECISION:  4 November 2019
DATE CORRIGENDUM
SIGNED:25 February 2020
PLACE OF DECISION:  Perth
AMENDMENT:  The following corrections are made to the decision:

In the original decision record, paragraphs 32 and 33 had no content and have been deleted. The paragraphs have now been re numbered.
Christine Kannis
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Carolyne Chelagat MITEI
CASE NUMBER:  1807387
HOME AFFAIRS REFERENCE(S):          BCC2015/3334908
MEMBER:Christine Kannis
DATE:4 November 2019
PLACE OF DECISION:  Perth
DECISION: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) visa:
·cl.820.211(2)(a) of Schedule 2 to the Regulations; and
·cl.820.221(3) of Schedule 2 to the Regulations.

Statement made on 04 November 2019 at 11:39am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – family violence – spousal relationship – evidence of financial commitments – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 820.211, 820.221; rr 1.15, 1.21, 1.23
CASES
Guven v MIMIA [2006] FMCA 311
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 12 November 2015 on the basis of her relationship with her sponsor, Mr Philip Yhai Anek Myain. At that time, Class UK contained only one subclass: Subclass 820 (Partner). 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 include cl.820.211 and 820.221 which require that, at the time of application and time of decision, the applicant is the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant has suffered family violence committed by the sponsor: cl.820.221(3).The applicant claims this occurred in this case.
The visa was refused because the delegate was not satisfied the applicant was the spouse or de facto partner of the sponsor and therefore she did not meet cl.820.211(2)(a). Having made this decision the delegate did not consider the applicant’s family violence claim.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
On 3 October 2019 the Tribunal wrote to the applicant to invite her to a hearing to have been held on 4 November 2019, at 9.00 am Western Australian time. This invitation was sent to an email address provided for the purposes of communication with the Tribunal. The hearing invitation advised that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before it.
The applicant failed to attend the scheduled hearing.
Prior to the scheduled hearing the Tribunal requested the applicant to provide specific documents in support of her family violence claim. On each occasion the applicant promptly responded and provided the requested documents.
Despite the applicant’s failure to attend the hearing the Tribunal proceeded to make a decision. The Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it pursuant to s.360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether at the time of application the applicant met cl.820.211(2)(a) and if so, whether she has suffered family violence.
The applicant claimed to be the spouse of the sponsor at the time of application. She claims the relationship with the sponsor has now ceased and she has been the victim of family violence.
There are specific circumstances in which an applicant will be eligible for a Subclass 820 visa notwithstanding that the relationship between the applicant and the sponsoring partner has ceased and they include those set out in cl.820.221(3).
Relevantly cl.820.221(3) says:
An applicant meets the requirements of this subclause if:
(a)the applicant would meet the requirements of subclause 820.211(2) (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b)        either or both of the following circumstances applies:
(i) either or both of the following:
(A)   the applicant;
(B)   a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
The provisions of cl.820.221 indicate that a genuine partner relationship within the meaning of the Act must have existed before the relationship ceased and the applicant would have otherwise met the criteria in subclauses 820.211(2) (5) or (6). This means that, while the claims of family violence do not have to cause the cessation of the relationship, the relationship which has ceased must have been one which would otherwise have met the requirements of the relevant legislation.
This approach was approved in the case of Guven v MIMIA [2006] FMCA 311 at [22]-[26] where Hartnett FM found that when considering the grant of a Subclass 100 Spouse (Residence) visa it was open to the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a spousal relationship within the meaning of the Regulations and only where it found that such a spousal relationship existed, was it required to make a further finding in relation to claims of domestic violence (as it was then referred to).
Therefore before assessing whether the applicant has suffered relevant family violence, the Tribunal must assess whether at any point of time the applicant and the sponsoring partner were in a spousal relationship within the meaning of the Regulations.
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 husband and wife 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 as to 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 r.1.15A(3), which is extracted in the attachment to this decision.
A Marriage Certificate issued by the Registrar of Births, Deaths and Marriages (WA) showing the parties were married on 18 September 2015 was provided. On this basis the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s.5F (2)(a).
The Tribunal considered the r.1.15A(3) factors.
Financial aspects of the relationship
In relation to the financial aspects of the relationship the Tribunal considered the documentary evidence including NAB statements for an account in the parties’ joint names which showed limited transactions.
The evidence before the Tribunal indicated that the applicant was employed and the sponsor was in receipt of a Centrelink payment. CBA statements for bank accounts in the applicant’s sole name show she paid for living expenses including rent and utilities. In a statutory declaration made by the applicant dated 31 August 2016 she said on 22 August 2015 they moved to a house at Beckworth Avenue Kiara WA (Beckworth Avenue) where they lived with her brother-in-law. She and her brother-in-law paid the rent and shared the bills and the sponsor paid for groceries.
An Australian Super letter dated 29 December 2015 addressed to the applicant was provided. The letter confirmed her recent request to update her nominated beneficiaries. The letter confirmed that the sponsor and the applicant’s mother were equal beneficiaries and the relationship with the sponsor was described as “Spouse”.
An Australian Super letter 11 April 2016 addressed to the sponsor was provided. The letter confirmed his recent request to update his nominated beneficiaries. The letter confirmed that the applicant was the sole beneficiary and the relationship was described as “Wife”.
A SGIO motor vehicle Certificate of Insurance 2015-16 dated 12 November 2015 in the parties’ joint names was provided.
Nature of the household
A Residential Tenancy Agreement indicating the applicant, the sponsor and a third person were tenants of the property at Beckworth Avenue for the period 22 August 2015 to 22 February 2016 was provided.
The Marriage Certificate listed Beckworth Avenue as the applicant’s and the sponsor’s place of residence. Correspondence addressed to the applicant and the sponsor separately and jointly at Beckworth Avenue was provided.
Statutory declarations made by the parties stated that they shared household duties.
Social aspects of the relationship
Statutory declarations made by friends attesting to their relationship and recognition as a couple were provided to the Department.
A Centrelink letter dated 10 November 2015 addressed to the sponsor was provided. The letter confirmed that the sponsor was recorded as married to the applicant as of 18 September 2015.
Photos of the applicant and the sponsor together and with others were provided. The photos were dated in 2014, 2015 and 2016.
The Tribunal finds that the parties represented themselves to other people including Centrelink as being married to each other at the time of application.
The nature of the persons’ commitment to each other
A letter dated 28 June 2016 from Dr Raad Hassan of Gosnells Medical Clinic stated that the applicant and sponsor were trying to conceive and that the applicant needed simple corrective surgery to open her tubes to enable her to fall pregnant. Dr Raad said the applicant had been a patient at the clinic since 21 June 2015.
In a statutory declaration made by the applicant dated 31 August 2016 she said prior to the cessation of the relationship she was concerned that the sponsor had a problem with alcohol. She said they had engaged in counselling with an agency and they had also spoken to their Church Elders to address this issue prior to the cessation of the relationship.
Conclusion
The Tribunal has considered the documentary evidence and based on that evidence finds that prior to cessation of their relationship the applicant and the sponsor were married to each other under a marriage; they were not living separately and apart on a permanent basis and they saw their future as a long term one; they had a mutual commitment to a shared life together to the exclusion of others; and the relationship was genuine and continuing. The Tribunal placed weight on the evidence with respect to the social aspects of the relationship and the nature of the persons’ commitment to the relationship. Accordingly the Tribunal is satisfied that the applicant and sponsor were in a spousal relationship at the time of application and the applicant meets cl.820.211(2)(a).
The applicant claims the relationship ceased following an incident on 6 June 2016 when the sponsor attempted to stab her with a kitchen knife. The details of the incident are set out in the applicant’s police statement dated 7 June 2016.
The Tribunal is satisfied that the relationship has ceased and the issue is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations and therefore meets cl 820.221(3).
Has a claim of family violence been made under the regulations?
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 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 r.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: r.1.23(3), (5), (7), (12), (14).
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).
On the applicant’s claims, the only relevant form of evidence is a Court order. An interim Violence Restraining Order (VRO) was made on 14 June 2016. The VRO identified the applicant as the person protected and identified the sponsor as the person bound by the order. The applicant has provided a copy of a final VRO issued by the Magistrates Court at Perth on 3 November 2017 which expired on 3 November 2018.
Prior to the scheduled hearing the applicant advised the Tribunal that the sponsor was served in person with the interim VRO at the Kiara Police Station on 20 June 2016. She provided a Notification to Applicant of Service of Restraining Order dated 28 October 2019 bearing the seal of the Magistrates Court of Western Australia which stated that the order granted on 14 June 2016 was served on 20 June 2016. The applicant advised that the sponsor was given opportunities to respond in Court but failed to appear on all occasions on 15 November 2016, 23 November 2016 and 23 May 2017. The final VRO was made on 3 November 2017.
The applicant’s written police statement dated 7 June 2016 describes an incident on 6 June 2016 during which the sponsor pushed her, grabbed at her shirt and rushed at her with a knife saying he was going to kill her. In the statement the applicant said the sponsor told her that if she called the police they were done. She called the police and the sponsor packed his belongings and left the house.
The Tribunal is satisfied that a Court order was made against the sponsor for the protection of the applicant in relation to violence that occurred whilst the parties were in the relationship, after the sponsor 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.
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 the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
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) visa:
·cl.820.211(2)(a) of Schedule 2 to the Regulations; and
·cl.820.221(3) of Schedule 2 to the Regulations.
Christine Kannis
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15A     Spouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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).
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.

[2019] AATA 6474

4 November 2019

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Immigration

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