Nainoka (Migration)

Nainoka (Migration) [2023] AATA 2115 (8 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Luisa Naomi Sukoisuva Nainoka
REPRESENTATIVE:  Ms Michele Clayton
CASE NUMBER:  1911836
HOME AFFAIRS REFERENCE(S):          BCC2017/3916164
MEMBER:Edward Howard
DATE:8 June 2023
PLACE OF DECISION:  Brisbane
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) of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations

Statement made on 08 June 2023 at 4:33pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – the parties were validly married – parties had joint liabilities and obligations – breakdown of the relationship – visa applicant has claimed that she was subjected to family violence committed against her by the sponsor – applicant suffered family violence committed by the sponsoring partner during their relationship – independent expert provided an opinion that the applicant had suffered relevant family violence – decision under review remitted
LEGISLATION
Migration Act 1958, ss, 5, 65
Migration Regulations 1994, rr 1.15, 1.23,1.24, 1.25, Schedule 2, cls 820.211, 820.221
CASES
He v MIBP [2017] FCAFC 206
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 (Cth) (the Act).
The applicant applied for the visa on 24 October 2017 on the basis of her relationship with her sponsor. 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 (Cth) (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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211.
The applicant appeared before the Tribunal on 1 June 2023 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Issues And Law
There is a two-stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.
Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.
[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].
The issue in the present case is whether at the time of the visa application and the time of this decision, the parties satisfy the criteria under cl.820.211 and cl.820.221.
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), which is extracted in the attachment to this decision. 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?
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?
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 evidence of the parties is that they first met by telephone in April 2015. The visa applicant was speaking on the telephone with her cousin, who was living in St George. Her cousin introduced her over the phone to the sponsor and the parties began communicating directly after that time. The parties relationship grew closer and they kept in constant contact over a six-month period. The sponsor was aware that the visa applicant was visiting Australia from Fiji and so he invited her to visit him in St George, sending money to her to assist with travel arrangements.
The visa applicant arrived in St George on 2 November 2015 and was met in the town by the sponsor, staying with him at his residence. The parties committed to an exclusive relationship and were engaged, on 14 November 2015. They were married in St George on 12 December 2015. During the remainder of her three months in Australia, the visa applicant was introduced to many friends, relatives and acquaintances of the sponsor. On 24 January 2016, the visa applicant was required to return to Fiji. The visa applicant’s mother was suffering from a serious illness and the visa applicant remained in Fiji to care for her mother. The visa applicant then returned to Australia on 25 March 2017. The parties remained in daily contact whilst the visa applicant was in Fiji.
The visa applicant was required to return to Fiji on two further occasions in 2017 and 2019, for a period of 3 to 4 weeks at each time, following the death of family members. Other than for those periods away, the parties remained living together as a married couple until about March 2020 (a period of approximately 4 years and 4 months), when the marriage broke down as a result of alleged family violence committed by the sponsor against the visa applicant. The parties have been separated since that time.
The alleged family violence consisted of controlling behaviour, isolating the visa applicant from friends, physical and sexual abuse and verbal and emotional abuse.
The visa applicant obtained a role as secretary at her local Catholic parish and subsequently as a carer at Warrawee Aged Care facility in St George. The parties did open a joint account but it was hardly ever used. The visa applicant has worked for the duration of the marriage and continues now to support herself. The parties pooled their resources to pay for their rent, utilities and other regular expenses. The visa applicant has always contributed financially to the relationship.
The parties did have joint liability as tenants for their residence and the obligations that flowed therefrom. They have never held any joint real estate are other major assets.
The Tribunal accepts the evidence of the visa applicant that despite the fact the parties did not own real estate or major assets, they did each contribute to the financial relationship. This included the regular payment of rent, utilities and other day-to-day household expenses. The parties cohabited for approximately 4 years and 4 months, less time spent with family in Fiji and the financial relationship existed continuously during that time.
The Tribunal finds that the parties had joint liabilities and obligations, that they pooled their financial resources and that they shared day-to-day household expenses. The Tribunal weighs the financial aspects of the relationship in favour of the visa applicant.
Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.
The evidence of the parties is that they met in person in November 2015 and were married in December 2015. The visa applicant was required to return to Fiji pursuant her visa conditions in January 2016 and did not return to Australia until March 2017 as a result of caring for her ailing mother. Apart from the period away, the parties cohabited continuously for 4 years and 4 months until the breakdown of the relationship in March 2020.
The Tribunal places weight on the parties’ living arrangements, based on the evidence that they lived together from December 2015 until March 2020.
The Tribunal is satisfied that the parties’ household and living arrangements are consistent with that of a married couple in a genuine relationship. Based upon the evidence received, the Tribunal weighs the household aspects in favour of the visa applicant.
Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.
The parties have provided extensive evidence supporting their claim of being in a genuine relationship. The evidence demonstrates the clear recognition by family, friends and acquaintances, of the parties as a genuine couple over a period of more than 4 years. The Tribunal places weight upon the statements provided in support.
The parties also provided photographic evidence of their wedding and extensive social interaction and other activities, including with members of each of their families.
The Tribunal is satisfied on the evidence that the parties represented themselves to other people as being in a long-term and genuine married relationship, that they held the favourable opinion of family, friends and acquaintances about the nature of their relationship and that they regularly planned and undertook joint social activities. The Tribunal weighs the social aspects of the relationship in favour of the visa applicant.
Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
The evidence of the parties is that they first met by telephone in April 2015. The visa applicant was introduced to the sponsor over the phone by her cousin and the parties began communicating directly after that time. The parties relationship grew closer and they kept in constant contact over a six-month period. When the sponsor was aware that the visa applicant was visiting Australia from Fiji, so he invited her to visit him in St George, sending money to her to assist with travel arrangements.
The visa applicant arrived in St George on 2 November 2015 and was met in the town by the sponsor, staying with him at his residence. The parties committed to an exclusive relationship and were engaged, on 14 November 2015. They were married in St George on 12 December 2015. The parties remained living together as a married couple until about March 2020 (a period of approximately 4 years and 4 months), when the marriage broke down as a result of alleged family violence committed by the sponsor against the visa applicant. The parties have been separated since that time.
The parties have provided the Tribunal with extensive evidence as to the genuineness of the relationship, the social acceptance of each of them with their families and friends and their commitment as a couple. The parties have spent considerable time with family members and friends as a married couple.
From the evidence provided, the Tribunal finds that the parties were in a genuine and continuing relationship, displayed a strong commitment to each other, provided significant emotional support to each other and clearly saw the relationship as long-term.
In this regard, the Tribunal notes the evidence of the sponsor including his signed statement. The document is highly relevant to the issue of the genuineness of the relationship and the commitment of the parties while they were living together as a married couple, from the perspective of the sponsor. In this document, the sponsor refers to his wife with kind and affectionate words, repeatedly expressing his love for her. The Tribunal finds this evidence strongly supports the visa applicant’s contention that she and the sponsor were in a genuine relationship and provided each other with significant emotional support.
The Tribunal has been provided with persuasive evidence that the sponsor subjected his wife to serious and ongoing family violence during the relationship.
The sponsor’s violence towards his wife included controlling behaviour, especially in relation to the visa applicant socialising and meeting with other people and attempting to isolate her from friends that she had made in the local community.
The sponsor subjected the visa applicant to physical and sexual abuse. The sponsor physically assaulted his wife on occasions and forced her to have sexual relations with him.
The sponsor regularly subjected the visa applicant to verbal and emotional abuse, including yelling and swearing at her.
The Tribunal is satisfied that at the time the visa application was made, the parties satisfied the definition of “Spouse” as defined in Section 5F of the Act; in that they were validly married; had a mutual commitment to a shared life as a married couple to the exclusion of others; that the relationship between them was genuine and continuing; and that they lived together. The Tribunal is therefore satisfied that the parties relationship fulfilled the criteria contained in Cl.820.211(2) of the Regulations at the time the visa application was made.
Pursuant to Cl.820.221(1), in order to be eligible for the grant of a Subclass 820(UK) visa, the applicant must also continue to meet the requirements of Cl.820.211(2) at the time of this decision. Having regard to the evidence before the Tribunal of the separation of the parties, this threshold is, prima facie, unable to be satisfied. However, the visa applicant has claimed that she was subjected to family violence committed against her by the sponsor prior to their separation. Clause 820.221 can alternatively be met if, relevantly, the requirements of cl 820.221(3) are met.
Cl.820.221(3) of the Regulations states as follows:
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to 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;
Therefore, if the Tribunal is satisfied that the visa applicant would continue to meet the requirements of Cl.820.211(2) except that the relationship has ceased and, if it is satisfied that the visa applicant had family violence committed against her by the sponsor, as alleged, then the visa applicant will meet the requirements of Cl.820.221 at the time of the decision.
Regulation 1.23(9) of the Regulations states the following:
“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 124 that:
(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.”
Regulation 124 states as follows:
The evidence mentioned in paragraph 1.23(9)(c) is:
(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
(b) the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
Migration (Specification of Evidentiary Requirements - Family Violence) Instrument (LIN 23/026) 2023 and in particular Schedule 1 thereof, sets out the types of evidence acceptable in relation to evidence of family violence. The schedule specifically refers to family violence support service providers and social workers, both of whom have provided evidence in support of the visa applicant’s allegation of family violence. Additionally, the schedule sets out the items of evidence that are acceptable and the information that must be included.
The Tribunal is in receipt of two reports from the visa applicant’s regular treating doctor, Dr Karen Benn, dated 27 May 2022 and 8 June 2023. In a consultation on 27 May 2022 the visa applicant informed Dr Benn of the abusive behaviour perpetrated by her husband.
It is the opinion of Dr Benn that the allegations of abusive behaviour described to her by the visa applicant may be consistent with family violence. Dr Benn noted that the allegations consisted of psychological, emotional and physical abuse perpetrated by the sponsor against the visa applicant. By way of example, the visa applicant was threatened by her husband so as to force her to have sexual relations with him. He would humiliate her in front of her friends and would accuse her of going out with other men. The visa applicant often felt scared and stressed as a result of the abuse which had a detrimental impact on her sleep. The visa applicant informed Dr Benn that she would take as many shifts as possible at the aged care home so that she wouldn’t have to be in the home with the sponsor.

Dr Benn referred the visa applicant to Ms Alexandra Donoghue for treatment.
The Tribunal is in receipt of a report from Ms Alexandra Donoghue, Mental Health Occupational Therapist, dated 4 September 2022. The visa applicant was first referred to Ms Donahue by her General Practitioner on 27 May 2022 and was subsequently treated by her over an extended period. The visa applicant is in the process of arranging further treatment by Ms Donoghue. Ms Donoghue has noted the actions and behaviour of the sponsor as has been set out in this decision above.
It is Ms Donoghue’s professional opinion that the visa applicant’s presentation and report of incidents to her are consistent with her having been subject to family violence. Ms Donoghue believes that the visa applicant was subjected to the violence as described by her, perpetrated by the sponsor.
The evidence relating to family violence committed against the visa applicant has been detailed above in this decision and includes the following actions by the sponsor against the visa applicant, as presented in the evidence of the visa applicant, Dr Karen Benn, General Practitioner and Ms Alexandra Donoghue, Mental Health Occupational Therapist:
(i)controlling behaviour;
(ii)social isolation;
(iii)physical and sexual violence; and
(iv)verbal and emotional abuse.
In each regard, the Tribunal finds that the evidence provided by the visa applicant, Dr Benn and Ms Donoghue are conclusive in satisfying the applicable subclauses of Regulations 1.23 and 1.24 of the Migration Regulations 1994 and Schedule 1 of Migration Instrument (LIN 23/026) 2023.
Having considered the evidence, the Tribunal is satisfied that the requirements of Cl.820.211(2) were met the time of the visa application. Further, the Tribunal is satisfied that the visa applicant suffered family violence against her by the sponsoring partner (and otherwise in accordance with Regulation1.23) and therefore would have continued to meet the requirements of the subclause at the time of the decision but for those circumstances, hence satisfying the criteria in Cl.820.221(3).
The Tribunal is therefore satisfied the visa applicant meets the criteria of cl 820.211(2) and cl 820.221.
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 applications for Partner (Temporary) (Class UK) visas, with the direction that the first named visa applicant meets the following criteria for a Subclass 820 (Partner) visa:
·Cl 820.211(2) of Schedule 2 to the Regulations
·Cl 820.221 of Schedule 2 to the Regulations
Edward Howard
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).

[2023] AATA 2115

8 June 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction