Phan (Migration)

[2020] AATA 2206

Phan (Migration) [2020] AATA 2206 (24 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nhat Hung Phan

CASE NUMBER:  1808534

DIBP REFERENCE(S):  BCC2014/3594340

MEMBER:Christine Kannis

DATE:24 January 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa

Statement made on 24 January 2020 at 6:06am

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – validly married – relationship ceased – financial, household and social aspects of relationship – nature of commitment – claim of family violence committed by sponsor – no evidence provided to support claim, and no appearance at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65, 360

Migration Regulations 1994 (Cth), rr 1.15A, 1.21, 1.23, Schedule 2, cl 801.221

CASE

Guven v MIMIA [2006] FMCA 311

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 Immigration on 20 March 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 December 2014 on the basis of his relationship with his sponsor. At that time, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter the primary criteria include cl.801.221(2) which requires 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.801.221(6)(b),(c)(i). The applicant claims this occurred in this case.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.801.221(2) because his relationship with the sponsor had ceased and it did not appear that he met any of the alternative criteria for the grant of the visa.

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The applicant was represented in relation to the review by his registered migration agent.

6. On 12 December 2019 the Tribunal sent the applicant an Invitation to attend a hearing on 20 January 2020. 

7. Prior to the scheduled hearing the applicant’s representative advised in writing that the applicant was seeking the decision under review  be affirmed and that the applicant did wish to provide any evidence in support of his application and did not wish to attend to attend a hearing. The representative advised that following the affirm decision the applicant would be seeking Ministerial intervention.

8. In these circumstances and pursuant to s.360(2)(b) of the Act, the Tribunal proceeds to make a decision on the review without a hearing and on the basis of the written evidence before it. 

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. In the present case, the applicant claims the relationship with the sponsor has ceased, and he has been the victim of family violence.

11. The provisions of cl.801.221(6)(b),(c)(i) indicate that a genuine partner relationship within the meaning of the Act must have existed before the relationship ceased (the applicant would have otherwise met the criteria in cl.801.221 (2) or (2A)).  This means that, while the claim of family violence does 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.

12. 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).

13. 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 or de facto relationship within the meaning of the Regulations.

    Whether the parties are in a spouse or de facto relationship

14. The evidence provided included a copy of a Marriage Certificate issued by the Registrar of Births, Deaths and Marriages (WA) showing the applicant and the sponsor married on 23 April 2014. On the basis of the written evidence before it 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).

15. 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.

16. The parties first met on 23 August 2013 and they married on 23 April 2014.

17. On 3 November 2017 the sponsor advised the Department that she was withdrawing her sponsorship and said they had been separated for a few months and the applicant had moved out to live with his new girlfriend.  

18. On 10 November 2017 the Department sent the applicant an Invitation to comment on the information received that his relationship with the sponsor had ceased. On 17 December 2017 the applicant’s migration agent advised the Department by email that the applicant was a victim of family violence and that psychological and social worker reports would be forwarded. No further information was received.

19. The parties each provided a Declaration of the Relationship document. In the Declarations they set out how they met and how their relationship developed. The documents were undated but appeared to have been lodged with the application for the visa.

20. The Tribunal considered the r.1.15A(3) factors.

    Financial aspects of the relationship

21. The Tribunal has taken into account the evidence provided as to the financial aspects of the relationship including the extent of pooling of financial resources and any sharing of day-to-day household expenses.

22. In his application for the visa the applicant stated that he and the sponsor had a joint mortgage, car loan and savings account. An Offer and Acceptance document dated showing the parties as the buyers of a property at Borden Road Marangaroo WA (Borden Road) and a Purchaser Statement indicating settlement occurred on 17 December 2015 were provided.  The Tribunal accepts that the parties jointly owned Borden Road.

23. ANZ statements for an account in the parties’ joint names for the period 28 August 2014 to 24 December 2014 were provided. The statements indicate that the sponsor transferred funds into the account however the descriptions of the other withdrawal and deposit transactions did not identify the basis of the transactions. A CBA statement in the parties’ joint names for the period 19 November 2015 to 31 December 2015 was provided. The statement showed one transaction only.  A St George Fixed Loan Agreement dated 1 July 2015 (page 1 of 7 only) in the parties’ joint names was provided.

24. A Water Corporation account dated 12 January 2016 and an account form Cullen Macleod dated 16 December 2015, both in the parties’ joint names were provided.

25. There was some evidence that parties had joint liabilities however there was no evidence before the Tribunal as to how the liabilities were met.

26. In his Declaration of the Relationship the applicant stated that he had been living with the sponsor and her parents at Tempany Way, Koondoola WA (Tempany Way) since December 2013 and that they shared the living costs such as gas, petrol, electricity and water. No evidence was provided to substantiate this contention.

27. In his application for the visa the applicant said he and the sponsor had one account from which they paid all the bills such as gas, water, insurances, electricity, shire and rates. However there was no documentary evidence before the Tribunal demonstrating that the parties pooled financial resources or shared expenses at any time.

28. Despite some evidence of joint ownership of property and joint liabilities, the Tribunal finds that the evidence in relation to the financial aspects of the relationship was limited.

    Nature of the household

29. The Tribunal has taken into account the evidence as to the nature of the household including the parties’ living arrangements and any sharing of housework.

30. Correspondence addressed to the parties individually and jointly at Tempany Way, Koondoola WA (Tempany Way) and to the parties jointly to Borden Road was provided.

31. In her Declaration of the Relationship the sponsor said she and the applicant lived together with her parents at Tempany Way from December 2013. She said they shared the chores and the cooking. In his Declaration of the Relationship the applicant said he lived with the sponsor and her parents at Tempany Way from December 2013.

32. The Tribunal finds that the evidence in relation to the nature of the household was minimal and was not an indicator of a genuine and continuing spousal relationship.

    Social aspects of the relationship

33. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether parties represent themselves to other people as being in a de facto relationship or a spousal relationship with 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.

34. In the Declarations of the Relationship each party stated that in December 2013 the sponsor’s parents asked him to move into their home and live there with the sponsor.

35. A statutory declaration made by the sponsor’s stepfather, Mr William Leslie Armstrong, was provided. Mr Armstrong is married to the sponsor’s mother. The statutory declaration indicates that the parties lived at Tempany Way with Mr Armstrong and his wife.  His reasons for his belief that the parties’ relationship was genuine and continuing were that the parties had invited him and his wife to Vietnam for a big wedding in 2016. He said the parties looked after each other. The Tribunal gave this evidence some weight.

36. In his Declaration of the Relationship the applicant said in November 2014 he and the sponsor travelled to Vietnam and the sponsor met his parents, his sister and extended family members. Evidence of joint travel in November 2014 was provided.

37. In his Declaration of the Relationship the applicant stated he and the sponsor often went out with friends and cousins.

38. In his application for the visa the applicant said he and the sponsor had not travelled in the previous two years because they we planning to ask his mother to visit Australia in the following year in 2017. He said they had dinner every week with friends and the sponsor’s family.

39. Photos of the parties together with other people including photos on their wedding day were provided. The photos did not identify the occasions or dates they were taken or the other people shown.

40. Statutory declarations made by friends were provided.  In her statutory declaration the sponsor’s cousin, Ms Thi Truong Anh Phan, stated that she believed the parties’ relationship was genuine and continuing because she had seen them care for each other, because they had bought a house together and she had seen they were happy when they married. At the time of making the statutory declaration Ms Phan had known the applicant for one year.

41. Statutory declarations from work colleagues and friends were provided. Ms My Dung Lieu’s reasons for her belief that the parties’ relationship was genuine and continuing were that she had seen the applicant look after the sponsor when she visited their house and that they had been through a lot together such as happiness, sharing and caring. Mr Henry Myo Aung Lwe’s reasons for his belief that the parties’ relationship was genuine and continuing were that he had attended their wedding and they had mentioned future plans to accommodate expanding their family. The Tribunal did not find the reasons of either declarant to be persuasive and gave these statutory declarations limited weight.

42. A HBF Health Insurance Certificate dated 1 September 2014 in the sponsor’s name indicated that the policy covered the applicant and the sponsor and that the type of cover was ambulance cover for a couple.

43. The Tribunal found that the parties represented themselves to other people as being in a spousal relationship with each other. The Tribunal found that they undertook joint travel in November 2014.

    The nature of the persons’ commitment to each other

44. The Tribunal has considered the evidence provided in relation to the nature of the persons’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long term.

45. The sponsor’s Vodafone records for December and January (years not indicated) were provided. The records highlight a phone number which the Tribunal infers is the applicant’s number however no evidence was provided to confirm that this was the case.

46. In her Declaration of the Relationship the sponsor said the applicant protected her and takes care of her. She said they were saving for their future.  In his Declaration of the Relationship the applicant said they were planning to buy a new car, a home and save money for a holiday before having a baby. In his application for the visa the applicant indicated that he and the sponsor planned to start a family in 2019. The Tribunal noted that in his statutory declaration Mr Armstrong said they parties were planning to buy a house.

    Conclusion

47. The Tribunal considered the documentary evidence. There was limited evidence with respect to the financial aspects of the relationship, the nature of the parties’ household and the nature of their commitment to each other. Despite this the Tribunal accepts that the parties jointly owned real estate property and that they lived together at Tempany Way with the sponsor’s parents. The Tribunal accepts the evidence in the parties’ respective Declarations of the Relationship which indicated that they each saw their future as a long term one at the time of making the Declarations. The Tribunal placed weight on the evidence with respect to the social aspects of the relationship and in particular the statutory declaration made by the sponsor’s father and the parties’ joint travel to Vietnam in November 2014 to meet the applicant’s family.

48. Based on the documentary evidence the Tribunal finds that prior to cessation of their relationship the applicant and the sponsor were married to each other under a marriage that is valid for the purposes of the Act; 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.   

49. Therefore the Tribunal is satisfied the applicant and the sponsor were in a spousal relationship and that this relationship has ceased. The issue that then arises in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

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

50. 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).

51. In the present case the applicant’s representative, when requesting that the matter be determined without a hearing, advised that he had been instructed to submit that the applicant was a victim of family violence. No evidence was provided to support a judicially determined or non-judicially determined claim of family violence. As such, a claim of family violence has not been made under r.1.23.

52. Given the above conclusion that the claim of family violence has not been made, the applicant does not meet the requirements of cl.801.221(6)(b),(c)(i) for the grant of the visa.

53. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    DECISION

54. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa

    Christine Kannis
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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.