Rossi (Migration)

[2018] AATA 2816

Rossi (Migration) [2018] AATA 2816 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Marcelo Antonio Rossi

CASE NUMBER:  1801612

DIBP REFERENCE(S):  CLF2013/232211 CLF2016/87616

MEMBER:Justin Owen

DATE:29 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2018 at 1:34pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Spouse or de facto partner – Relationship ceased – Sponsor’s mental illness – Non-judicial family violence claim – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth) ss 5F, 65, 359A
Migration Regulations 1994 (Cth), r 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 5 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 20 September 2013 on the basis of his relationship with his 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). 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. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the applicant was not, at the time of decision, the spouse (as defined under section 5F of the Act) or the de facto partner (as defined under section 5CB of the Act) of the sponsoring partner. The delegate also found that the applicant did not meet or claim any of the exceptions of subclauses 801.221 (2A), (3), (4), (5), (6) or (8). Relevantly to this matter the primary criteria include cl.801.221 of Schedule 2 to the Regulations.

3. The Tribunal received from the applicant a valid application for review on 22 January 2018. 

4. The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Departmental decision record provided by the applicant to the Tribunal. 

5. On 24 April 2018 the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting him to comment on or respond to information by 8 May 2018.

6. The particulars of the information were that the applicant had made an application for a Partner visa. It was pointed out that it is a requirement for the grant of that visa that at the time when the application is made, and at the time of the decision, the applicant was the spouse or de facto partner of the sponsoring partner, unless one of the exceptions applies.   The Tribunal pointed out that information on the Department’s file indicated that his relationship with the sponsoring partner has ended.

7. The Tribunal pointed out that the information was relevant as the Tribunal may conclude that at the time of this decision, the applicant was no longer the spouse or de facto partner of the sponsor. The Tribunal stated that if it was not satisfied that the applicant was the spouse or de facto partner of the sponsor, and if he did not meet any of the alternative criteria for the grant of the visa, the Tribunal may conclude that he did not meet the requirements for the grant of the visa for which he had applied.

8. The applicant was invited to give comments on or respond to the above information in writing.  He was also invited to provide in writing any claims he wished to make as to the exceptions under which he could be granted the Partner visa. These included the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children.  The Tribunal invited the applicant to provide information that he believed may be relevant to these exceptions.

9. The applicant responded on 7 May 2018 providing a written submission to the Tribunal

10. The applicant appeared before the Tribunal on 13 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

11. The applicant was represented in relation to the review by his registered migration agent.  The agent attended the hearing.

12. The applicant provided a post-hearing submission and documentary evidence in order to make a formal claim of non-judicial family violence on 25 June 2018. 

13. The Tribunal at the hearing noted the applicant’s written submission of 7 May 2018 which drew the Tribunal’s attention to previous information that was provided to the Department including a statutory declaration in December 2016 from the sponsor; a letter from the sponsor’s psychiatrist; a statutory declaration from the applicant; supporting letters and a submission the applicant’s representative made to the Department on 16 July 2016.  The applicant in their submission to the Tribunal stated that he had repeatedly attempted reconciliation and attempted to develop a meaningful relationship with the sponsor since her return to Australia.  The applicant said he had known the sponsor since 2012 after meeting in Argentina.  It was claimed that he often assists with the care of the sponsor’s son Brandon and checks by to see is the sponsor is OK. 

14. In the submission it is conceded that despite all attempts the applicant has not been able to fully reconcile and re-establish his relationship with the sponsor to the point where they are in daily contact or he is ready to cohabitate.  It is claimed the relationship is in ‘flux’.  The applicant requested that the Tribunal be mindful that the sponsor could still be subject to depressive or manic episodes as claimed in earlier submissions to the Department.  The applicant has stated that he does not have permission from the sponsor’s doctor to get a comprehensive understanding of the sponsor’s illness or treatment.  He makes comments concerning the treatment of those diagnosed with bi-polar and schizophrenia. 

15. The applicant said to the Tribunal that right now there was no relationship with the sponsor. He said he last spoke to the sponsor approximately a month ago.  The applicant said the sponsor had initiated the break-up of the relationship.  He said he last lived with the sponsor in 2016.  He said he last saw the sponsor’s son about four months ago at a shopping centre but had last spoken to him in 2017 when the sponsor had told him she would not support his visa application anymore.           

16. The Tribunal accepts on the evidence that the sponsor has been unwell and has been previously undergoing medical treatment.  The Tribunal accepts that these have been difficult times for the applicant and furthermore accepts that he previously provided strong support to the sponsor.  The Tribunal however notes that the applicant has confirmed that the relationship has ended. The Tribunal furthermore notes from the decision record provided by the applicant that the sponsor after being contacted by the Department on 18 October 2017 confirmed that she was no longer in a marital relationship with the applicant.  The applicant says that he last saw the applicant late last year.  There is no evidence before the Tribunal to suggest that she has changed her decision.  The Tribunal notes the applicant’s request that the Tribunal be mindful that the sponsor could still be subject to depressive or manic episodes (T1, Folio.23).  The Tribunal nevertheless on the evidence is satisfied that the relationship between the applicant and sponsor has ended.    

17. The Tribunal on the evidence before it, including that in the decision record supplied by the applicant, is of the opinion that at the time of decision the relationship between the applicant and sponsor has ceased. The applicant cannot meet cl.801.221(2).

18. The Tribunal at the hearing asked the applicant if he wished to make any claims in relation to any of the exceptions available to him given the status of the relationship with the sponsor and the evidence from the applicant that the relationship had ceased. 

19. The applicant said that there were no children in the relationship.  There was no claim made or evidence before the Tribunal that the sponsor has died.  There are no claims made in relation to children or the death of the sponsor that have been made to the Tribunal by the applicant.

20. The applicant raised the issue of family violence in the relationship.  He said initially at the hearing however that he did not want to make a claim or make any report.  He said that the sponsor has a son Brandon who is disabled and if he made such a claim it may impact upon him.  He said for this reason he didn’t wish to make a claim.    

21. The applicant discussed a situation involving the sponsor in Malaysia in 2016 when she travelled there as a tango singer.  The sponsor he said had had a mental breakdown in Malaysia after not taking her medication which had led to her hospitalisation.  The applicant has previously provided a statement to the Department concerning this.  (D1, Folio.26).  The sponsor he says was in Malaysia for three months.   He said that he had to take care of everything, including the sponsor’s son.  He had to take out a financial loan.  He had paid for a friend to travel to Malaysia to assist the sponsor and to enable her to return to Australia.  The applicant stated the Police and the Australian High Commission in Kuala Lumpur were well aware of the situation.

22. The applicant talked about the sponsor’s return to Australia in June 2016 following this and her behaviour towards him after her arrival.  He said he had to contact the Police to get his own belongings after the sponsor refused to let him return to their house.  He said she improved following treatment.  He said they were still husband and wife only living separately. 

23. The Tribunal invited the applicant to raise any other matters in support of his application for review.  The applicant said that he wanted to remain living in Australia.  He said it was different to Australia.  He said he had been working for the almost three years in the air conditioning industry with Frost Engineering.  He said he had work opportunities in Australia he didn’t have in Argentina.  He said his work colleagues were very supportive of him at Frost.  The Tribunal accepts the evidence subsequently presented via correspondence from Frost Engineering that the applicant is a genuine asset to the business.  The applicant however has applied for a Partner visa.  It is not an employment visa.  The Tribunal considers the claims concerning his employment with Frost Engineering are of no relevance to the matter currently before the Tribunal.   

24. The applicant’s representative in oral evidence said that they had not raised family violence due to not wishing to impact upon the sponsor’s son.  She said that she had not however ‘explored’ the matter of non-judicial family violence.  She said she could raise the matter with the applicant to see whether or not there was evidence that would meet the criteria.  The Tribunal confirmed it would consider any evidence the applicant wished to submit and any formal claim of family violence they wished to make between the hearing and the time of decision.

25. The applicant’s representative said that the applicant’s employer was willing to sponsor him for a work visa.  The representative raised the issue of an appeal to the Minister that would allow the applicant to remain in Australia.  The applicant said that if he was able to remain in Australia he would do the training, become proficient in English and become qualified. The applicant’s representative blamed the sponsor’s illness for the breakdown of the relationship and suggested that would be the basis of a claim to the Minister for intervention.  .     

26. The applicant’s representative said that no evidence of any family violence had been previously presented due to the applicant’s reticence to impact upon the sponsor’s son Brandon.  This was reflected in the applicant’s post-hearing written submission.  The Tribunal adjourned the hearing to allow the applicant to consult further with his representative in terms of making a claim of family violence.  After the hearing resumed the applicant said that the sponsor had thrown him out of the house on three separate occasions in 2014, 2015 and 2016.  He said there had been verbal abuse from the sponsor.  He said that the sponsor had become stressed from medical operations and would subsequently become abusive.  The applicant’s statutory declaration of 19 June 2018 reflects these assertions (T1, Folio.39-40).  He said that the sponsor had threatened to burn his belongings the year after they were married as well as the following year.  He said the sponsor would become stressed prior to the operation but would apologise after the medical procedure.  He said it was symptomatic of someone bipolar.  He said that he had purchased a motor vehicle but when he had been thrown out of the house she had sold his vehicle.       

27. The applicant in oral evidence said that there had never been physical abuse but there has been verbal abuse and threats. 

28. The applicant’s representative wrote on 25 June 2018 that ‘in light of the revelations during the hearing, Mr Rossi was advised to obtain non-judicial evidence of the family violence as described in his oral testimony.’  The applicant through his representative subsequently wrote to the Tribunal making a formal claim of non-judicial family violence. 

29. Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature. Under r.1.22 a reference to a person having suffered or committed family violence is a reference to a person being taken under r.1.23 to have suffered family violence. The applicant is required to provide the necessary evidence in order to establish a valid claim of family violence under Regulation 1.24(b) of the Migration Act. To this end the applicant provided to the Tribunal (in addition to a post-hearing submission) a letter from his GP Dr Huy Vo (T1, Folio. 36), a letter and report from registered psychologist Silvia Belo-Tomic (T1, Folio.37-38) and a statutory declaration from the applicant dated 18 June 2018 (T1, Folio.39-40). A letter from Frost Engineering attesting to the applicant’s excellent employment record at the firm was also submitted (T1, Folio. 35).

30. The Tribunal considers the correspondence from the GP Dr Vo is deficient in meeting the requirements of the Regulations in making a valid claim of family violence. Schedule 1 requires that in the medical report by a registered medical practitioner there must be details of the treatment for mental health that is consistent with the claimed family violence. The correspondence from the Dr Vo however is very general in its nature with a paucity of information. In the Tribunal’s opinion, the correspondence does not refer to or detail any treatment by the GP that is concerned with the claim of family violence. It makes no reference to any claim of family violence by the applicant. The Tribunal does not consider the correspondence of Dr Vo meets the requirements of the Migration Regulations for a claim of family violence.

31. The Tribunal has provided the applicant with the opportunity to provide appropriate evidence in order to make a valid claim. The applicant has representation in this matter. The applicant has not provided evidence in the nature and form required to make a valid claim of judicially determined, or non-judicially determined family violence. This is because the applicant has not provided evidence specified by the Minister by instrument in writing for r.1.24(b) of the Migration Regulations 1994.

32. The Tribunal notes the claim in the applicant’s post-hearing submission that the applicant was unable to obtain any confirmation or record from the NSW Police Force in Parramatta that they assisted him in 2016. 

33. The applicant’s representative in the post-hearing submission made a range of comments concerning the evidence of the applicant concerning the family violence claim.  The applicant’s representative referred to research that men are less likely to seek assistance or help when affected by family violence.  The applicant’s representative claims the applicant’s concerns about the sponsor; his lack of English and his lack of awareness of support for male victim of family violence all may have contributed to the applicant not seeking assistance.  A claim has also been made that there are few services available to men suffering family violence and the applicant may not have found assistance.  These matters are irrelevant to the matter currently before the Tribunal.  The current matter before the Tribunal concerns a Partner visa. This visa is granted on the basis of the applicant’s relationship with his spouse.  The issue in the present case for the tribunal is whether the applicant and her sponsor are currently in a spousal relationship; and if not whether the applicant satisfies the alternate criteria (child of the relationship; death of sponsor or victim of family violence) to be granted a visa (cl.801.221)  

34. On the basis of the applicant’s own evidence prior, during and post the hearing as well as the evidence on the decision record provided by the applicant, the Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 801 Partner visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa. The applicant cannot satisfy cl.801.221(2).

35. Further, the Tribunal is not satisfied that a valid claim for family violence has been presented in accordance with Division 1.5 of the Regulations. Accordingly, the Tribunal finds that the applicant has not made a valid claim of family violence under the Act. As the applicant’s relationship with his sponsor has ceased and he has not made a valid claim of family violence, the applicant does not meet the requirements of cl.801.221(6) for the grant of the visa. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that he meets any of the other alternative criteria.

36. Accordingly, for the reasons above, the Tribunal finds that the applicant does not satisfy the criteria for the grant of the visa: cl.801.221 (1)

    DECISION

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

    Justin Owen
    Senior Member