Qu (Migration)

[2018] AATA 5896

Qu (Migration) [2018] AATA 5896 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SIXUAN QU

CASE NUMBER:  1802515

DIBP REFERENCE(S):  BCC2014/2062623

MEMBER:Adrienne Millbank

DATE:2 August 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 02 August 2018 at 10:21am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – failed to provide minimum evidence required to establish incidents of family violence by sponsor – sponsorship withdrawn – relationship ceased – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), rr 1.23, 1.24, Schedule 2, cl 801.221

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 22 January 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 21 August 2014 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 (the Regulations). Relevantly to this matter the primary criteria include cl.801.221.

3. The Delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2) because at the time of decision the applicant was no longer in a de facto or spousal relationship with the original sponsor. The sponsor had formally withdrawn his sponsorship on 2 September 2017 because the relationship had broken down.

4. The applicant was advised on 11 September 2017, via her migration agent, that the sponsorship had been withdrawn. She was invited to respond and provide additional information. On 9 October 2017 the applicant confirmed the relationship had broken down and claimed that she had experienced family violence perpetrated by the sponsor.

5. Further letters were sent by the Department to the applicant, via her migration agent, on 31 October 2017 and 5 December 2017, inviting her to submit documentary evidence in accordance with the family violence provisions of the Regulations. The letters detailed the type of evidence deemed acceptable to meet these requirements. No response was received by the Department, and the Delegate proceeded to decision. 

6. The applicant appeared before the Tribunal on 25 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was represented in relation to the review by her registered migration agent.

8. Further submissions and documents were provided to the Tribunal on 17 July 2018.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant was born in China in 1992 and first arrived in Australia on 6 June 2011 on a Student (subclass 573) visa. She was granted a Provisional Partner (subclass 820) visa on 28 October 2015 on the basis of her de facto relationship with the sponsor.

11. The applicant acknowledged to the Tribunal, in written statements and at hearing, that her relationship with the sponsor had broken down, and that he had withdrawn his sponsorship. The Tribunal acknowledges that the applicant was granted a subclass 820 visa and on the evidence before it is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue in the present case is whether the applicant suffered relevant family violence at the hands of the sponsor before the relationship ended.

12. In a written submission sent to the Tribunal on 24 June 2018 and received by the Tribunal shortly before the hearing the applicant’s agent advised:

    The applicant understands that she had previously failed to provide evidence to the Department in relation to family violence the sponsoring partner had committed on her. She confirmed that her then migration agent who was introduced by the sponsoring partner had forwarded the relevant correspondences from the Department to her. However, she had not received proper professional advice as (the agent) became irresponsive when she tried to contact his office. She confirmed that she had completed the Form 1022 – Notification of Change in Circumstances which was submitted to the Department on 9 October 2017 and she had not been advised on what and how she was required to provide in establishing her family violence claim.

    The agent further stated in their submission:

    The applicant understands that she ought to provide minimum of two items listed in the instrument immi 12/116. We are instructed to advise that the applicant is currently undergoing psychology treatment with Ms Trudy Sheffield, Vision Psychology. It is of Ms Sheffield’s opinion that she requires another subsequent appointment on 27 June 2018 with the applicant so to produce the required statutory declaration.

13. At the hearing, the Tribunal asked the applicant why she had not provided evidence to the Tribunal in support of her claim to have suffered relevant family violence, as this evidence had been requested from her by the Department, and the lack of such evidence was the basis of the decision to refuse her application. The applicant stated that she didn’t understand the letters and documents that were sent to her and was confused about what to do; and that the agent employed by her sponsor had ‘taken care of everything’ to do with her visa application.

14. The applicant requested, through her representative, three weeks to obtain evidence to make a non-judicially determined claim to have suffered relevant family violence. The applicant confirmed that she could obtain the required evidence within three weeks. The Tribunal agreed to the request. As noted, further submissions and documents were provided on 17 July 2018.

15. In terms of the non-judicially determined evidentiary requirements listed in the instrument Immi 12/116, a statutory declaration signed on 16 July 2018, by a psychologist, was provided. A second item as listed in the instrument was not provided. Under the heading ‘Other Evidence’ the applicant’s agent, in their written submission dated 17 July 2018,  advised:

    We are instructed to advise that the applicant has attended face-to-face and telephone consultations with Claudia, a case officer from Women’s Immigration Support Service regarding her option to file a Domestic Violence Order against the alleged perpetrator. She has out moved from her Sunnybank rental house which he had attended, uninvited for more than 2 occasions.

16. No further time was requested in order to provide a Domestic Violence Protection Order.

17. A person can only be determined to have claimed or suffered family violence where the claims and assessments satisfy the requirements of Division 1.15 of the Regulations. As the applicant has not provided the minimum of two items listed in the instrument immi 12/116, the evidence adduced by the applicant does not meet the statutory requirements set out in r.1.24.

18. Under Regulation 1.23(9)(c)  an applicant is only considered to have made a non-judicially determined claim of family violence if the applicant provides the required non-judicial evidence. As the applicant has failed to provide the minimum evidence required, the Tribunal finds that she has not established that she has suffered family violence committed by her sponsor.

19. As the applicant has not satisfied the requirements of Division 1.15 of the Regulations, and there is no evidence before the Tribunal that there is a child of the relationship, she does not satisfy cl.801.221(6).

20. The applicant’s sponsoring partner has not died, therefore she does not satisfy cl.801.221(5).

21. The provisions in cl.801.221(2A) and (8) rely on specific procedural scenarios which do not apply in this case.

22. At the time of decision the applicant and her sponsor are not in a relationship which is genuine and continuing as required for the purposes of the Act under s.5F(2)(c) or s.5CB(2)(b). Accordingly, the applicant cannot satisfy the requirements of spouse or de facto under the Act.

23. Therefore, at the time of decision the applicant cannot satisfy the criteria in cl.801.221(2)(c) for the grant of the visa.

24. Given all the above, there is no evidence before the Tribunal that the applicant meets the alternative criteria in cl.801.221(2A), (3)-(6) or (8).

25. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Adrienne Millbank
    Member