Perederii (Migration)

[2023] AATA 3198

Perederii (Migration) [2023] AATA 3198 (17 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kinza Abdul-Aziz

CASE NUMBER:  2003600

MEMBER:Stephen Conwell

DATE:17 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(4) of Schedule 2 to the Regulations;

·cl.801.221(6) of Schedule 2 to the Regulations.

Statement made on 17 September 2023 at 4:29pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – relationship ceased – family violence committed by the sponsor – genuine relationship before family violence – evidence tested before a court – Family Violence Final Intervention Order – decision under review remitted

LEGISLATION

Family Law Act 1975
Migration Act 1958, s 5, 65, 360
Migration Regulations 1994, Schedule 2, cl 801.221; rr 1.15, 1.21, 1.23

CASES

He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 4 February 2020 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 September 2016 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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.

3. The delegate refused to grant the visa on the basis because whilst the delegate was satisfied there was sufficient evidence of the spousal relationship, the delegate did not consider the applicant’s family violence claim satisfied 801.221(4) and (6) of the Regulations.

4. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

5. The applicant was represented in relation to the review by her registered migration agent (representative).

6. In reaching its 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant and her sponsor were in a genuine spousal relationship and, if so, whether the applicant would continue to meet the requirements of subclause 820.221(2) except that the relationship has ceased and the applicant suffered family violence committed by the sponsor.

9. The Tribunal has regard to all the documents contained in the Department and Tribunal files including but not limited to, the decision record,  the sponsor’s and third party statements in support of the relationship, financial information, communication records, Court documents and the written submission of the representative dated 1 September 2023.  According to the evidence,

   ·     the applicant is a [Country 1] national. She and her previous sponsor met online and initially met in person during a holiday in [Country 2]. They commenced a relationship on 20 April 2014;

   ·     the parties married in Queensland [in] August 2016. Their relationship ended in March/April 2019 when the applicant ceased living with the sponsor;

   ·     on 17 July 2019, the applicant advised the Department that her relationship with her sponsor had ended and that she had suffered family violence perpetrated by her sponsor;

   ·     on 28 October 2019, the applicant provided the Department with a letter from [Agency 1], a family violence and parenting service, dated 9 October 2019. The letter stated that the applicant has been receiving counselling for the past four months and had been subject to “extreme control and extensive family violence.”

   ·     on 19 November 2019, the Department invited the applicant to provide the minimum evidentiary requirements stipulated under the family violence provisions;

   ·      on 28 November 2019 and on 23 January 2020, the applicant provided information to the Department, however, she did not provide documentary evidence to support her claim of family violence;

   ·     on 3 February 2020, the applicant  informed  the Department by email that she was unable to provide the required relevant evidence.

10. The Department was satisfied that the applicant was the spouse of her sponsor prior to the relationship breakdown, however found that she had failed to provide the minimum evidentiary requirements stipulated under the family violence provisions.

11. On [a day in] February 2020 the applicant made a report of family violence to the police and an interim intervention order was granted to her on that day. A final intervention was made by [Court 1] [in] June 2021 to remain in effect until [June] 2022.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the parties are in a spouse or de facto relationship

12. ‘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?

13. At the time the visa application was made the applicant provided evidence of her marriage to the sponsor. 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?

14. The Tribunal has had regard to the evidence provided relating to the parties’ financial relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other. These include evidence referred to in the delegate’s decision, in the representative’s written submission, psychological and counselling reports  and in the sponsor’s emailed statement in the Departmental file, as well as all other evidence in the Departmental and Tribunal files.

15. Based on the evidence before it, the Tribunal is satisfied the applicant and the sponsor were in a genuine spousal relationship and that this relationship has ceased. The Tribunal finds the relationship ceased in March/April 2019, with the Department being notified in July 2019. 

16. As a consequence, the Tribunal is satisfied that the parties were in a genuine spousal relationship prior to the relationship ceasing. The Tribunal notes that the delegate was also satisfied that the parties were in a de facto relationship prior to its breakdown, as recorded in the decision record.

    Family violence

17. In the present case, the applicant claims the relationship with her sponsor has ceased, and she has been the victim of relevant family violence.

18. 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 Regulations.

19. 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.

20. 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).

21. In the present case the applicant is seeking to establish family violence based on 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).

22. The applicant provided a copy of a ‘Family Violence Final Intervention Order’ made in her favour by [Court 1] [in] June 2021. The Order lists the sponsor as the defendant. The Order states that the defendant was served with a copy of the Application and Summons but was not present at Court. He did not agree to the Order being made. 

23. 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 while the parties were in the relationship; that the sponsor had an opportunity to be heard or otherwise make submissions to the Court prior to the Order being made. Therefore, family violence is taken to have occurred under r.1.23 of the Regulations.

24. 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.801.221(4) and (cl.801.221(6). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

25. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(4) of Schedule 2 to the Regulations;

    ·cl.801.221 (6) of Schedule 2 to the Regulations.

    Stephen Conwell
    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).