SINGH (Migration)

[2022] AATA 5234

SINGH (Migration) [2022] AATA 5234 (20 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ARVINDER PAL SINGH

REPRESENTATIVE:  Mr Navjot Singh

CASE NUMBER:  1816391

HOME AFFAIRS REFERENCE(S):          BCC2016/1985196

MEMBER:Russell Matheson

DATE:20 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl 820.211 of Schedule 2 to the Regulations; and

·cl 820.221(3) of Schedule 2 to the Regulations.

Statement made on 20 December 2022 at 8:18am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – s.375A certificate – anonymous allegation – relationship ceased – family violence claim – Interim and final Apprehended Domestic Violence Orders – genuine relationship existed – decision under review remitted

LEGISLATION
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23; Schedule 2, cls 820.211, 820.221

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 Home Affairs on 24 May 2018 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 India born in September 1993. He applied for the visa on 8 June 2016 based on his relationship with his sponsor. The relationship has since broken down and the applicant claims he was a victim of family violence.

3. The delegate refused to grant the visa on the basis that the applicant did not meet      cl.820.221(2)(a) because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 20 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend Mr Daljeet Singh.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. At the beginning of the hearing the Tribunal raised the issue of substantial compliance with the applicant. The Tribunal informed the applicant that he had lodged two applications with the Tribunal for review of a Partner (Residence) (Class BS) (Subclass 801) visa refusal (Case No:1816394) when in fact the delegate had refused his application for a Partner (Temporary) (Class UK) (Subclass 820) visa (Case No:1816391). The applicant informed the Tribunal that he wished the Tribunal to decide on his application for a Partner (Temporary) (Class UK) (Subclass 820) visa. 

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Hearing

   Section 375A certificate 

8. The Tribunal told the review applicant that certain information in the Department file is the subject of a s 375A certificate. 

9. This certificate prevents the Tribunal disclosing any document, matter or information referred to in the certificate contained in Trim reference numbers 120-135, as it would be contrary to the public interest because:

   ·The information was provided was provided in circumstances where the provider of the information, has not consented to disclosure to the applicant.

   ·The information, if disclosed, could haver the potential to identify the source of the information and could lead to injury or damage to a member of the community.

10. As s 375A applies to the information identified, the AAT must do all things necessary to ensure the information is not disclosed to any person other than to a member of the AAT as constituted for the purposes of this review, pursuant to s 375A(2)(b) of the Act.

11. The Tribunal informed the review applicant that it considered the certificate valid and provided a copy of the certificate to the review applicant as it did not identify any person by name in the certificate. The Tribunal asked the review applicant if he wished to comment on the validity of the certificate. The review applicant did not respond.

12. The Tribunal told the applicant that it had considered the information that is the subject of the certificate and is of the view that as the information is relevant to this case and relates to an allegation that the applicant and sponsor have entered a contrived relationship, the source of the information expects anonymity. The Tribunal considers the information the subject of the s 375A certificate relevant to this review. 

13. In accordance with s 359AA of the Act, the Tribunal put to the applicant information that it would consider to be the reason or part of the reason for affirming the decision.  The Tribunal explained the relevance and the consequences of the information and invited the applicant to comment on or respond to the information. The Tribunal also told the applicant that he could respond to that information orally or in writing or he could seek additional time to comment on or respond to it. The applicant decided to respond orally at the hearing.

14. The Tribunal told the applicant that it had considered the information that is the subject of the certificate and is of the view that the information is relevant to this case and relates to an allegation that the applicant and sponsor have entered a contrived relationship to obtain a favourable visa outcome in relation to the applicant’s visa application to remain in Australia.

15. The applicant responded orally that he had not entered a contrived relationship to obtain his visa.  

16. There is little evidence before the Tribunal to indicate the applicant has entered a contrived marriage with the sponsor and the Tribunal places no weight upon the anonymous allegation that is the subject of the s 375A certificate. The Tribunal informed the applicant of its decision not to place any weight on the allegation at the hearing.

    Relevant law

17. 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 (Cth) (the Regulations).

18. Relevantly to this matter the primary criteria include cl 820.211 and cl 820.221, which require, 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 cls 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.

19. Based on the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

20. 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 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 r.1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: regs 1.23(3), (5), (7), (12), (14).

    Did the applicant suffer family violence?

21. In the present case the applicant is seeking to establish family violence based on evidence tested before a Court. Acceptable forms of court tested evidence as set out in r.1.23, are: a court injunction under the Family Law Act 1975; an Australian court order for the protection of the alleged victim; or a conviction or finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim. Where such evidence is provided, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence: r.1.23(1).

22. On the applicant’s claims, the only relevant form of evidence is two court orders. The applicant presented to the Tribunal Interim and final Apprehended Domestic Violence Orders made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The orders identify the applicant as a protected person and the sponsor as a defendant. The orders were not signed by the defendant, and she was not present in court when the orders were made. The Tribunal is satisfied that two court orders were made against the sponsor for the protection of the applicant in relation to violence after the sponsor had an opportunity to be heard or otherwise make submissions to the court. Therefore, family violence is taken to have occurred under r.1.23 of the Regulations.

    Was the applicant the spouse of the sponsor?

23. ‘The delegate was not satisfied that the applicant was the spouse of the sponsor. However, the Tribunal notes that a substantial amount of documentary evidence has been presented with the application and the Tribunal has also had the benefit of the applicant’s oral evidence. Contrary to the delegate’s findings, the Tribunal has formed the view that the presented evidence does establish the existence of a genuine relationship between the applicant and the sponsor before its breakdown.

24. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and he has been the victim of family violence.

    Relationship

25. The applicant’s written submission and oral evidence was that he matched with the sponsor Jessica Minchin on a social media dating App ‘Meet me’ in September 2015 and their conversation moved to phone calls and Facebook. The parities relationship developed over time as boyfriend and girlfriend, and they entered a committed relationship professing their love for each other in December 2015. The parties married in a civil ceremony at Parramatta Park on 9 May 2016. The parties after marrying started living together in a unit at Guildford and later moving to Westmead in August 2020. The applicant gave evidence that the parties were committed to the relationship even though they had their ups and downs and that they generally got along and spent most of their free time together. The applicant stated that during the parties’ relationship he noticed that the sponsor was becoming a little controlling and at times aggressive and abusive towards him and one occasion she called him and Indian dog and stormed into their bedroom and kicked a mirrored wardrobe door and broke it. The applicant said that they usually reconciled their differences quickly and their relationship was generally good even though the sponsor did not like Indian people.

26. The applicant gave evidence that he supported the sponsor financially and that he was manager at a local restaurant and his income was supplemented by bonuses. When the COVID-19 pandemic hit the restaurant changed its business model and only offered take away food and he no longer received any bonuses, and this placed financial stress upon the couple. The applicant further sated that the sponsor was addicted to marijuana and due to the lack of finances he told the sponsor he was no longer paying for her marijuana use. When this occurred the sponsor then threatened to kill the applicant and his parents. The applicant informed the Tribunal that the sponsor threatened to withdraw her sponsorship for his visa unless the applicant paid her $50,000. The applicant was of the view the sponsor was emotionally blackmailing him. The applicant provided evidence that the sponsor damaged his personal belongings and his motor vehicle and locked him outside on the balcony of their unit to suffer the elements. On another occasion the sponsor bit him when affected by drugs. The applicant gave evidence that the sponsor had PTSD because of being abused as a child and as a result she became addicted to drugs and when affected became violent and abusive towards him. On 21 July 2021 the applicant left the parties residence in Westmead. On 26 July 2021 the applicant applied for an Apprehended Domestic Violence Order (ADVO) at Blacktown Local Court. The application went before the Blacktown Local Court on 1 September 2021 where the matter was adjourned to 12 October 2021 to allow the sponsor to seek legal advice. On 12 October 2021 the sponsor was granted a second adjournment and the application was adjourned to 3 November 2021. On 3 November 2021, the Blacktown Local Court granted the applicant final orders for the ADVO. The applicant’s evidence was consistent with the evidence he provided to police when granted his interim ADVO. The Tribunal is satisfied that the applicant suffered family violence during the parties’ relationship.

27. The applicant claims to have entered a committed relationship in 2016 and the parties had plans to build a future together in Australia and purchase their own home and have children when financially secure. The applicant provided significant photographic evidence of the parties’ social activities with family and friends in several social settings. The applicant provided detailed and consistent evidence in relation the social activities of the couple. The Tribunal accepts that the parties planned and undertook joint social activities together during their relationship. The Tribunal accepts that the relationship was socially recognised by family and friends, and they represented themselves to other people as being married to each other before the relationship ceased

28. The Tribunal is satisfied, having regard to the totality of the circumstances and the evidence provided by the applicant, that the parties were validly married, and they had a mutual commitment to a shared life to the exclusion of all others before the relationship ended. The Tribunal is satisfied their relationship was a genuine and continuing relationship and that they lived together or not separately and apart on a permanent basis during the relationship.

29. The applicant provided consistent and detailed evidence regarding his relationship with the sponsor; the Tribunal found the applicant to be generally a credible witness. Having regard to all the circumstances of this relationship, the Tribunal is satisfied, on balance, that the applicant and the sponsor did have a genuine spousal relationship before its breakdown. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

30. Based on the above evidence, the Tribunal is satisfied that the applicant and sponsor met the definition of spouse in s.5F of the Act.

31. Having regard to the entirety of evidence before it, the Tribunal is satisfied that before the relationship broke down, the applicant and the sponsor did establish a joint household, represented themselves to others as being in a genuine relationship, and had a mutual commitment to the relationship, which they considered to be a long term one. The Tribunal accepts the applicant has provided limited information regarding the financial aspects of the parties’ relationship in relation to any pooling and sharing of financial resources or sharing of daily living expenses. Overall, the Tribunal is satisfied that they were spouses.

    Has the applicant suffered family violence?

32. The Tribunal finds the evidence (paragraph 26) provided by the applicant persuasive and the applicant a credible witness. The Tribunal places significant weight on the fact that much of the evidence presented by the applicant is contemporaneous to the events.

33. Having considered all the evidence before it, the Tribunal is satisfied for the purposes of r.1.23 that the applicant has suffered relevant family violence. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor.

    Conclusion

34. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl.820.221(3). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

35. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 820 visa:

    ·cl 820.211 of Schedule 2 to the Regulations; and

    ·cl 820.221(3) of Schedule 2 to the Regulations.

    Russell Matheson
    Member

    
    
    

36. ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21 Interpretation

    …

    non-judicially determined claim of family violence has the meaning given by subregulations  1.23(8) and (9).

    relevant family violence means conduct, whether actual or threatened, towards:

    (a)the alleged victim; or

    (b)a member of the family unit of the alleged victim; or

    (c)a member of the family unit of the alleged perpetrator; or

    (d)the property of the alleged victim; or

    (e)the property of a member of the family unit of the alleged victim; or

    (f)the property of a member of the family unit of the alleged perpetrator;

    that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

    …

    violence includes a threat of violence.

    …

    1.23     When is a person taken to have suffered or committed family violence?

    (1)For the purposes of these Regulations:

    (a)a person (the alleged victim) is taken to have suffered family violence; and

    (b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.

    Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.

    Circumstances in which family violence is suffered and committed — injunction under Family Law Act 1975

    (2)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.

    (3)For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.

    Circumstances in which family violence is suffered and committed — court order

    (4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and

    (b)[…] order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.

    (5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — conviction

    (6)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:

    (a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or

    (b)recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.

    (7)For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — non-judicially determined claim of family violence

    (8)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.

    (9)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim is:

    (i)       a spouse or de facto partner of the alleged perpetrator; or

    (ii)      a dependent child of:

    (A)the alleged perpetrator; or

    (B)the spouse or de facto partner of the alleged perpetrator; or

    (C)both the alleged perpetrator and his or her spouse or de facto partner; or

    (iii)     a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and

    (c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:

    (i)       the alleged victim has suffered relevant family violence; and

    (ii)      the alleged perpetrator committed that relevant family violence.

    (10)If an application for a visa includes a non-judicially determined claim of family violence:

    (a)the Minister must consider whether the alleged victim has suffered relevant family violence; and

    (b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

    (c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

    (i)       the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

    (ii)      the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.

    (11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.

    (12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    (13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.

    (14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.