Sharma (Migration) - [2019] AATA 6924

Sharma (Migration) [2019] AATA 6924 (1 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Bhavna Sharma
CASE NUMBER:  1808487
DIBP REFERENCE(S):  CLF2018/42174
MEMBER:Christine Kannis
DATE:1 November 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.
Statement made on 01 November 2019 at 6:27am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) – Subclass 100 (Partner) – spouse or de facto partner – arranged, valid marriage in home country – financial, household and social apsects of relationship – nature of commitment – minimal evidence of genuine and continuing relationship – not necessary to consider claim of family violence – decision under review affirmed
LEGISLATION
Migration Act (Cth), ss 5F, 65, 359A, 376
Migration Regulations (Cth), r 1.15A; Schedule 2, cl 100.221
CASES
Guven v MIMIA [2006] FMCA 311
Lawani v MIAC [2013] FCCA 114
MIAC v Pham [2008] FCA 320
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 12 March 2018 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 23 June 2016 on the basis of her relationship with her sponsor, Mr Vishal Anand Sharma. At that time, Class BC contained one subclass: Subclass 100 (Partner). The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant. 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.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because her relationship with the sponsor had ceased and it did not appear that she 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 appeared before the Tribunal on 14 October 2019 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Hindi and English languages
At the commencement of the hearing the Tribunal informed the applicant of the existence of a s.376 certificate and explained the effect of such a certification is that the Tribunal is given discretion whether to disclose the document and/or information covered by the certificate. The Tribunal provided the applicant with a copy of the certificate and informed her that it had found the certificate to be valid because the document and/or information had been given to the Department in confidence. The Tribunal invited the applicant to comment on the validity of the certificate. She made no comment on…

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.

Continue reading Sharma (Migration)

Details

AGLC: Sharma (Migration) [2019] AATA 6924
Case: [2019] AATA 6924
Decision Date: 1 November 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Migrant) (Class BC) visa, Subclass 100. The applicant claimed that her relationship with her sponsoring partner had ceased and that she had been a victim of family violence, which would allow her to meet certain exceptions under the Migration Regulations 1994. The Tribunal was required to determine whether the applicant continued to be the spouse of her sponsoring partner or, if the relationship had ceased, whether she met the criteria for a visa grant under the exceptions, specifically those relating to family violence.

The Tribunal was required to consider all the circumstances of the relationship, including financial, household, and social aspects, as well as the nature of the commitment between the parties. Crucially, the Tribunal had to be satisfied that a genuine spousal relationship existed prior to any claimed family violence. The Tribunal also noted that it was not obligated to proactively identify deficiencies in evidence or disclose its reasoning process in advance. Despite being informed of the need for specific evidence regarding family violence and being provided with additional time to submit further information, the applicant ultimately failed to satisfy the criteria for the grant of the visa.

The Tribunal affirmed the decision not to grant the applicant the visa. The applicant did not demonstrate that a genuine and continuing spousal relationship existed, nor did she provide sufficient evidence to meet the requirements of the family violence exceptions under cl.100.221 of the Migration Regulations 1994. The Tribunal's reasoning was informed by established case law, including *Guven v MIMIA* [2006] FMCA 311, which confirmed the approach of first assessing the genuineness of the spousal relationship before considering claims of domestic violence.

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 The issue in the present case is whether the applicant continues to be the spouse of her sponsoring partner or if her relationship with her sponsor has ceased, whether she meets any of the exceptions under cl.100.221. There are circumstances in which an applicant will be eligible for a Subclass 100 visa notwithstanding that the relationship between the applicant and the sponsoring partner has ceased. These circumstances include where the applicant and/or a dependent child has suffered family violence committed by the sponsor (cl. 100.221(4)(c)(i)). The applicant claims the relationship with Mr Sharma has ceased and she has been the victim of family violence. The provisions of cl.100.221 indicate that a genuine partner relationship within the meaning of the Act must have existed before the relationship ceased and the applicant would have otherwise met the criteria in cl.100.221. This means that, while the claims of family violence do 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). The Tribunal explained to the applicant that it must be satisfied that a genuine spousal relationship existed prior to the claimed family violence and that if satisfied, it would consider the family violence claim. The Tribunal notes that there is no general obligation on the Tribunal to point out what evidence is required to meet the family violence provisions, or to disclose its thought processes in advance of its decision as to whether or why evidence provided is deficient: MIAC v Pham [2008] FCA 320 (Siopis J, 12 March 2008) at [51]–[54]; Lawani v MIAC [2013] FCCA 114 (Judge Whelan, 3 May 2013) at [53]–[55]. Notwithstanding, at hearing the Tribunal told the applicant that her statutory declaration dated 18 December 2017 did not set out her family violence claim. The Tribunal provided the applicant with a copy of IMMI 12/116 and explained that two items of evidence from the table were required to make a family violence claim. The Tribunal also informed the applicant that the statutory declaration from psychologist, Ms Maria Davey, in its present form was undated and unsigned. The Tribunal afforded the applicant additional time following the hearing to submit any further information on which she seeks to rely. On 24 October 2019 a statutory declaration dated 22 October 2019 made by the applicant, a signed and dated statutory declaration from Ms Davey and a written submission and letter from the applicant’s doctor were provided.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.Christine 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).

Ratio Decidendi

Legal Principle Established

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