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

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).
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.
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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant was represented in relation to the review by his registered migration agent.
On 12 December 2019 the Tribunal sent the applicant an Invitation to attend a hearing on 20 January 2020.
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.
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…

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: Phan (Migration) [2020] AATA 2206
Case: [2020] AATA 2206
Decision Date: 24 January 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, subclass 801, made by the applicant, who claimed their relationship with the sponsor had ceased and that they had been a victim of family violence. The Tribunal was required to determine whether the applicant met the criteria for the visa, particularly in light of the cessation of the relationship and the allegations of family violence.

The central legal issue was whether the applicant's relationship with the sponsor, prior to its cessation, constituted a genuine and continuing spousal relationship as defined by the Migration Act 1958 and the Migration Regulations 1994. Specifically, the Tribunal had to assess if the relationship met the requirements of a valid marriage, including mutual commitment, living together, and the exclusion of all others, as well as considering the financial, household, and social aspects, and the nature of the commitment between the parties. Only if such a relationship was found to have existed could the Tribunal then properly consider the claim of family violence.

The Tribunal reasoned that under clause 801.221(6)(b) and (c)(i) of the Regulations, a genuine partner relationship must have existed before its cessation for the applicant to qualify for the visa, even if family violence was a factor in the separation. This approach aligns with the principles established in *Guven v MIMIA* [2006] FMCA 311. The evidence presented included a marriage certificate confirming the parties were married on 23 April 2014. However, the sponsor had advised the Department on 3 November 2017 that she was withdrawing her sponsorship, stating the parties had been separated for some months and the applicant had moved out. Crucially, no evidence was provided to substantiate the claim of family violence, and the applicant did not appear at the hearing.

As the applicant failed to provide evidence to support the claim of family violence and did not meet the essential criteria for the visa, the Tribunal affirmed the decision not to grant the Partner (Residence) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE In the present case, the applicant claims the relationship with the sponsor has ceased, and he has been the victim of family violence. 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. 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 or de facto relationship within the meaning of the Regulations.Whether the parties are in a spouse or de facto relationship 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). 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. The parties first met on 23 August 2013 and they married on 23 April 2014. 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visaChristine KannisMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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 19941.21 InterpretationIn 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.

Ratio Decidendi

Legal Principle Established

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