Prasad (Migration)

[2023] AATA 323

Prasad (Migration) [2023] AATA 323 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shelvin Prasad

CASE NUMBER:  1902705

HOME AFFAIRS REFERENCE(S):          BCC2016/1544564

MEMBER:Kira Raif

DATE:9 February 2023

PLACE OF DECISION:  Sydney

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

Statement made on 09 February 2023 at 12:17pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased and non-judicially determined claim of family violence – statutory declaration and supporting statements do not comply with statutory requirements – no additional material provided after extension of time – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.23, 1.24, 1.25, Schedule 2, cls 820.211(8), (9), 820.221(3)(a), (b)(i)

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 17 January 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Fiji, born in October 1992. The applicant applied for the visa on 25 April 2016 on the basis of his relationship with his sponsor. His relationship with the sponsor subsequently ended. The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.211 because the delegate was not satisfied the applicant was the spouse of the sponsor when the application was made. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 1 November 2022 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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). 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.

5. In the present case, the applicant claims the relationship with the sponsoring spouse has ceased, and that he has been the victim of family violence.

6. Under reg 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 reg 1.21. The violence, or part of the violence must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14).

7. In the present case the applicant is seeking to establish family violence on the basis of a non-judicially determined claim of family violence.

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

8. Under reg 1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with reg 1.24 is provided. The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes. A statutory declaration under reg 1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).

9. The applicant provided to the Tribunal a number of documents. There are copies of his interactions with the police but these do not confirm the occurrence of family violence and do not meet the statutory requirements regarding what constitutes evidence of family violence. There is a statement from the applicant’s GP and other medical reports (one of which is unsigned) which refer to the breakdown of the applicant’s relationship with his partner and the depression and anxiety that the applicant had experienced. These also refer to an assault allegedly perpetrated by the applicant’s neighbour. Again, the Tribunal does not consider that these documents comply with the statutory requirements relating to establishing a claim of family violence.

10. The Tribunal had formed the view that the applicant did not present sufficient evidence that met the statutory requirements in set out in r. 1.24, relevant to establishing a claim that he had experienced family violence. The Tribunal informed the applicant of these deficiencies at the hearing that took place in early November 2022. The applicant told the Tribunal that he requires more time to obtain further evidence. The Tribunal is mindful that the primary decision was made more than three years prior to the Tribunal hearing and the delegate put the applicant on notice of the issues that  arise in his case. In the Tribunal’s view, the applicant has had ample time to obtain the prescribed evidence of family violence, noting that he had professional assistance of a migration agent in the past.

11. Nevertheless, the Tribunal granted the applicant more time to obtain prescribed evidence of the family violence. The applicant subsequently informed the Tribunal that he was seeing another professional and sought an extension of time until 16 December 2022. Although this deadline has now passed, at the time of this decision, the applicant has not provided any additional material to the Tribunal.

12. The Tribunal informed the applicant on 6 February 2023 that it intended to proceed to the decision. To date, the applicant has not indicated his intention to submit further documents and had not made a request for more time to do so. In these circumstances, the Tribunal has decided to proceed to decision without taking any further action to obtain evidence from the applicant.

13. Having considered the evidence before it, the Tribunal is not satisfied that the claim of family violence has been properly made in accordance with r. 1.24. The Tribunal is unable to consider the applicant’s claim that he had experienced family violence. The Tribunal is not satisfied that family violence occurred.  

14. The applicant’s evidence to the Tribunal is that his relationship with the sponsor has ended. The Tribunal finds that at the time of this decision, the applicant is no longer the spouse of the sponsor. There is no evidence that the applicant meets any of the alternative criteria for the grant of the visa. There is no evidence of the sponsor’s death, nor of any children. As noted above, the Tribunal is not satisfied a claim of family violence has been made under reg 1.23.

15. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl 820.221(3) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. The Tribunal is not satisfied the applicant meets cl. 820.221.

    Conclusion

16. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    decision

17. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

    Kira Raif
    Senior Member