NUGROHOWATI (Migration) - [2020] AATA 3488

NUGROHOWATI (Migration) [2020] AATA 3488 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mrs WENNY NUGROHOWATI
CASE NUMBER:  1727450
DIBP REFERENCE(S):  BCC2016/1902828
MEMBER:Grant Chapman
DATE:30 June 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa
Statement made on 30 June 2020 at 8:01pm

CATCHWORDS
MIGRATION – Partner (Temporary (Class UK)) visa – Subclass 820 (Spouse) – de facto partner – relationship ceased and sponsorship withdrawn – non-judicially determined claim of family violence – verbal and psychological abuse – statutory declarations by applicant and relevant professionals – opinion of independent expert – not family violence but arguments and anxiety about termination of partnership – procedural fairness – video-conferencing and cultural differences – two adverse letters from sponsor – expert’s opinion properly made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 359A
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23(1B)(b), 1.24, 1.25(2), Schedule 2, cl 820.211(2)(a), (8), (9), 820.221(3)(a), (b)(i)

CASE
Maman v MIAC [2011] FMCA 462

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 Immigration on 30 October 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Wenny Nugrohowati, applied for the visa on 31 May 2016 on the basis of her relationship with her sponsor, Glyn Edwards. 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.
On 30 October 2017, the delegate refused to grant the visa on the basis that the applicant did not meet cl.820.211(2)(a) because the information and evidence provided was insufficient to demonstrate that the applicant was the de facto partner of the sponsor, as defined under section 5CB of the Migration Act.
The Tribunal notes that at the time of the Departmental delegate’s decision, the sponsor had not withdrawn his sponsorship, nor had the applicant lodged any claim regarding family violence.
The applicant appeared before the Tribunal on 20 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Dana Cartmill, a social…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: NUGROHOWATI (Migration) [2020] AATA 3488
Case: [2020] AATA 3488
Decision Date: 30 June 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of Ms. Nugrohowati for a Partner (Temporary) (Class UK) visa (Subclass 820). The dispute arose after the cessation of her de facto relationship with her sponsor and the withdrawal of his sponsorship. Ms. Nugrohowati claimed family violence, alleging verbal and psychological abuse, and provided statutory declarations from herself and relevant professionals, along with an independent expert's opinion, to support her claim.

The primary legal issue before the Tribunal was whether Ms. Nugrohowati had established that family violence had occurred, as defined by the relevant migration regulations. This required the Tribunal to assess the nature of the alleged abuse, considering the evidence presented, including the sponsor's adverse communications and the expert's opinion, in light of the statutory definition of family violence. The Tribunal also had to consider whether procedural fairness had been afforded to Ms. Nugrohowati, particularly in relation to the use of video-conferencing and potential cultural differences impacting the assessment.

The Tribunal found that the independent expert's opinion, which concluded that the alleged conduct constituted arguments and anxiety about the termination of the partnership rather than family violence, was properly made and persuasive. The Tribunal reasoned that while the relationship had indeed ended and the sponsor had withdrawn his support, the evidence did not meet the threshold for family violence as defined by the legislation. The Tribunal affirmed the decision under review.

Orders