Roy (Migration)

Roy (Migration) [2021] AATA 1475 (16 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Christy Roy

CASE NUMBER:  1820692

DIBP REFERENCE(S):  BCC2014/2247716

MEMBER:Kira Raif

DATE:16 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:

·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations

Statement made on 16 March 2021 at 3:42pm

CATCHWORDS
MIGRATION –Partner (Migrant) (Class BC) visa – Subclass 100 –applicant has suffered family violence committed by the sponsor – relationship with sponsor has ceased – opinion from independent expert –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.21, 1.22, 1.23, 1.24, 1.25, Schedule 2, cl 100.221

CASES

Dang v Minister for Immigration [2016] FCCA 1426

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 3 July 2018 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in September 1980. She applied for the visa on 8 September 2014 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because the delegate found that the applicant’s relationship with the sponsor ended and the delegate was not satisfied the applicant suffered family violence. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 2 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s present partner. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At that time, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. Relevantly to this matter the primary criteria include cl.100.221 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.100.221(4)(b), (c)(i). The applicant claims this occurred in this case.

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

7. 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…