Sirisukthananun (Migration)

[2022] AATA 4639

Sirisukthananun (Migration) [2022] AATA 4639 (1 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Phatsikarn Sirisukthananun

REPRESENTATIVE:  Mr Adam Welch

CASE NUMBER:  1832416

HOME AFFAIRS REFERENCE(S):          CLF2018/356467

MEMBER:Meredith Jackson

DATE:1 December 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl 801.221(2)(c) of Schedule 2 to the Regulations

·cl 801.221(6)(b) and (c) of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 01 December 2022 at 4:04pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – relationship ceased – genuine and continuing relationship before family violence – business partnership with the sponsor – joint bank accounts – overseas visit of the applicant’s son – cohabiting at several addresses – genuine though dysfunctional relationship – non-judicially determined claim of family violence – medical and psychological evidence – compelling and compassionate circumstances – decision under review remitted        

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 801.221; rr 1.09, 1.21 - 1.25, 2.03

CASES

Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

statement of decision and reasons

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 October 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 October 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 (Cth) (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.

3.    The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221 because the applicant was not the spouse or de facto partner of her sponsor (as defined under section 5F and 5CB respectively) prior to the relationship ceasing. As the applicant did not satisfy subclause 801.221(6)(b) of the Regulations, the delegate was not required to consider a claim of family violence.

4.    The applicant appeared before the Tribunal on 29 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5.    The applicant was represented in relation to the review.

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

BACKGROUND

7.    The visa applicant is Ms Phatsikam Sirisukthananun, born in 1984 and a citizen of Thailand. She has a 14 year old son who lives with his grandmother in Thailand and is not an applicant for the visa. Ms Sirisukthananun first came to Australia in 2012 as the holder of a student visa. She held a further student visa which was valid until 2015. Ms Sirisukthananun applied for a two-stage partner visa in October 2014 on the basis of being in a partner relationship with Australian citizen Mr Ryan James Donohue, her sponsor and later, business partner in a Thai massage enterprise. The applicant was granted a provisional partner visa (UK820) in March 2016. In December 2016, the sponsor advised the department that the relationship had broken down. The following day, he advised the parties had reconciled. On 7 August 2018, he advised the department the relationship had broken down. Ms Sirisukthananun, after stating on 14 August 2018 that she was still in the relationship, later informed the department that the relationship had ended on 9 August 2018. She claims to have been the victim of family violence within the relationship.

ISSUES AND LAW

8.    There is a two stage process for onshore Partner visas. An applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In the present matter, the Tribunal is considering the permanent stage visa, the provisional stage having been granted in March 2016.

9.    The applicant claims her relationship with the sponsor has ceased and she has been the victim of family violence. 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: r.1.23(3), (5), (7), (12), (14).

1. Therefore, the issues in the present matter concern whether the applicant was in a partner relationship with the sponsor at the time family violence is said to have occurred, and whether she may avail herself of the ‘family violence’ exception to the requirement to have maintained the relationship at the time of decision.

Whether the parties are in a spouse or de facto relationship

1. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

Are the parties in a de facto relationship?

1. De facto partner' is defined in s 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

2. In forming an opinion whether parties are in a de facto relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

CONSIDERATION OF CLAIMS AND EVIDENCE

The delegate’s decision

1. The applicant provided a copy of the delegate’s decision to the Tribunal on review. It records that on 6 and 7 August 2018, the department conducted interviews with the sponsor and applicant respectively in relation to the second, permanent stage of the visa application (BS801). On 8 August 2018 the sponsor advised the department the relationship had broken down and he had withdrawn his sponsorship. On 14 August 2018, through her migration agent, the applicant responded to adverse information concerning the sponsor’s travels with a female third party. In her response she described Mr Donohue as having had other relationships with women, however confirmed that the relationship was continuing at that time. On 11 October 2018, the applicant advised the department that she considered the relationship broke down on 9 August 2018, and in mid-2016 she had been the victim of family violence perpetrated by the sponsor.

2. The delegate considered the specified aspects of a de facto relationship and found there was insufficient evidence of a genuine relationship. The delegate concluded that the relationship was not that of a de facto couple as claimed; rather, it was one of business partners who may or may not have had some form of romantic involvement. The delegate concluded that the relationship was not a genuine spousal or de facto relationship.

The specified aspects of the relationship

1. The Tribunal indicated to the applicant in the hearing that it would consider the specified aspects of a genuine relationship and make a finding as to whether it existed, before considering the claim of family violence. The Tribunal stated it would consider the evidence on Tribunal and Department files and that given at the hearing.

2. The Tribunal has weighed the evidence against the specified in reg 1.09A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.09A(2). The Tribunal finds as follows.

Financial aspects

1. With regard to the financial aspects of the relationship, the Tribunal accepts the applicant’s evidence that she and her partner established two businesses together. The applicant acknowledges that the first business failed, however states that the second continues to trade and has firmly established in two upmarket Brisbane CBD premises as Urban Thai Massage Pty. Ltd. The applicant claims the sponsor initially supported the business, and contributed to its management, construction and marketing and was employed in it fulltime. She states that after the relationship breakdown, Mr Donohue resigned as a company director and ceased his involvement. In support of the claim, the applicant provided 2015-2016 business bank accounts and an operating authority dated 1 July 2015, in joint names. The account statements from Bank West indicate the applicant and sponsor as joint signatories of a business account of Urban Thai Massage Pty Ltd established on 1 July 2015. This reflects that both were full-time employees. In support of her current sole ownership, the applicant provided a payroll employee summary for 25 staff;  Business Activity Statements for the months August to October 2022 and the company’s FY2021 tax return showing income of $976,844 before tax. An ASIC historical company extract dated 1 December 2022 provides details of the organisation’s governance and indicates the sole director and secretary as Ms Sirisukthananun. Mr Donohue is shown in the record as a previous member (shareholder). A change to the register of members note records that Mr Donohue’s shareholding was reduced on 17 February 2015.

2. There is no claim or evidence before the Tribunal that the parties shared major personal assets such as housing or cars, or incurred ongoing liabilities together in a private capacity. Statements provided show a joint personal account held at Westpac in the names of the applicant and sponsor. They are dated from 9 September 2014 to 31 October 2016, and show frequent credits of small lump sums and a wide range of purchases and payments. The applicant in the hearing stated that the small deposits were a function of the limited resources within the relationship at the time of the business start-ups, where if something needed to be paid for personally, the sponsor would transfer or deposit drawn-down cash to cover it.  The statements show some jointly made purchases of significant items from Apple Store, Bunnings and Rice Furniture.

3. The Tribunal has considered the financial evidence before it and is satisfied that between the two joint accounts and the conduct of two businesses, the applicant and sponsor shared their finances and had some joint ownership of minor assets, and through the business, joint liabilities. While the evidence does not demonstrate the orderly pooling of resources from sources such as salary, the fact that the parties owned a business together tends to blur how expenditure within the relationship happened. It may be gleaned that the parties shared the purchase of routine household items and services, and shared business expenses at the time the relationship broke down. The Tribunal, on balance, affords the financial circumstances light weight.

Nature of the household

1. The applicant’s young son from a previous relationship resides in Thailand with his grandmother. The applicant claims she was not in a position to bring him to Australia with her, initially because she was studying but later because she was persuaded by the sponsor not to apply for her son’s visa at the same time as her own, as it would be “easier once the permanent visa was granted”. The applicant provided evidence that her sponsor arranged and paid for her son’s three week, 2018 visit to Australia. She claims he spent considerable time with him during that visit. Photographs provided for the review show the child in tourist settings with the parties and other people, with broad smiles on all. The applicant stated that during the visit, the sponsor did not reside with them in her apartment because she had a friend and child living there to offset expenses and there were not enough bed spaces. During that period, she states, her partner stayed with his father but picked them up in his car to take them around.

2. The applicant claims that during the relationship, the parties shared three households: her original UniLodge apartment where the sponsor spent every Monday to Friday from soon after they met; an apartment owned by the sponsor’s father in Aurora Tower, Brisbane CBD, and an apartment in Mary Street Brisbane CBD. It was in the Aurora Tower apartment that she claims they had a major argument in mid-2016 over whether the sponsor was seeing other women. It is on this occasion she claims, she sustained bruising inflicted by the sponsor. She claims that later, in September 2016, after a further argument, the sponsor borrowed his father’s car and abruptly moved her and some of her belongings to another apartment in Mary Street. A photograph of the incident is provided. The applicant claims her sponsor led her to believe they were moving together, and did not tell her he was not planning to stay with her. In the hearing, the applicant said this had blindsided her, as he had left her in the new place with only some hastily packed items. She stated she “felt like a dog” that day. Her partner however returned the next day with completed paperwork for her permanent visa application and expressed his affection, she stated. The Tribunal notes the claimed timing of the incident broadly aligns with the lodgement of the application on 18 September 2016.

3. There is scant evidence provided of a shared and settled household in the relationship, however the Tribunal is mindful that this appears to have been a relationship that was tumultuous and rocky, replete with tensions, cultural obstacles and verbal conflict and several apartment relocations. Driving licenses and other documents including phone bills and AFP clearances reflect a joint address for the parties in Queen Street, and photographs depict some household type activities and entertaining. Statutory declarations provided in support of the review describe convivial meals and drinks at the parties’ shared home and one describes arrangements where the parties shared one of the two bedrooms while they shared the other. One declarant, Jintan Luxford (see also paragraph [25] below) declares that the parties’ apartment was spotless and that the applicant kept the house clean for the sponsor at all times.

4. The Tribunal has considered whether despite the upheaval, the household was that of a partnered couple. On balance, the Tribunal is satisfied that the parties shared addresses and household arrangements for most of the time they were in the relationship, and cohabited at several addresses, which roughly amounts to a household in the Tribunal’s view. The Tribunal affords this aspect some weight.

Social aspects

1. That the parties represented themselves to other people as being in a de facto relationship with each other is supported by statutory declarations from friends Kanakporn Srimork, Jintana Luxford, Suphaporn Jack, Raymond Jack, Anthony Libke and Boontharika Hughes. A common thread in these statements is a Thai connection, either through birth or relationships between Australian and Thai citizens. The declarants’ accounts are similar but do not appear scripted or contrived. Each attests to knowing a committed, loving couple, and expressed some distress or surprise at the relationship breakdown. The Tribunal affords the statements some weight. The applicant stated in the hearing that the parties’ social life was basically dual faceted. The sponsor mixed freely within Thai-related circles, as he spoke Thai and enjoyed Thai company, but kept an additional set of friends, related to his other employment in IT jobs, separate from the applicant. The Tribunal accepts that at the time of review, the declarants are the friends most available to the applicant for support statements in this particular case, where the sponsor’s friends, whom the applicant said she knew little about, are likely not within her reach because she did not know them personally. The applicant also provided a large number of photographs prior to the hearing and supplemented her evidence after the hearing with photographs featuring various social occasions with friends.

2. There is little evidence before the Tribunal that the applicant and sponsor knew each other’s families well, however there is some indication of familial acceptance. A statutory declaration by the sponsor dated 16 October 2014 refers to him having arranged for the applicant and him to move into a family owned property (Aurora Apartments) and having introduced the applicant to his father and his partner whom he names as Helen. The applicant claims that her own family lived in a regional area distant from Bangkok, and was therefore harder to visit, and while the relationship existed, the sponsor and her mother spoke regularly on FaceTime, as the sponsor speaks Thai. There is credible evidence that the sponsor provided for the applicant’s child to visit Australia and spent time with him during the stay.

3. The Tribunal having considered the social evidence separately and as a whole, weighs it moderately in the applicant’s favour.

Nature of the commitment

1. The parties stated with the visa application that they met in 2012 when the applicant provided massage services to the sponsor. They formed a romantic relationship towards the end of a trip to Thailand that they took with another student in 2013. “We left as friends and we came back as a couple,” the applicant stated in the hearing.

2. The relationship has ended permanently, according to the parties’ own evidence in August 2018. The sponsor notified the department that it ceased on 8 August 2018 while the applicant claims it  was on 9 August 2018. The applicant has confirmed in written and oral evidence that over the period, the parties moved home at least three times, and at times, such as when her son visited Australia, they lived in separate dwellings. However it can be gleaned from the body of evidence provided, that a live-in relationship was conducted for most of the time claimed. Accepting that the parties’ cohabited throughout much of the 2013-2018 period, the relationship may be said to have lasted six years before it failed. There was a brief breakdown in July 2016, department records and other evidence confirms, however it was quickly reconciled.

1. The applicant claimed in the hearing that initially, the relationship was loving, committed and without difficulty, other than that she held suspicions from time to time that her partner was being unfaithful. She states her attitude to the relationship was one of total commitment; she was completely faithful and full of hope for a prosperous future to be shared with her son between bases in Australia and Thailand, she says. She claims that for a substantial period, the sponsor felt the same: at least, this is all the parties spoke of, she said, being secure in their old age together. The sponsor’s 2014 statutory declaration refers to a plan to build a home in the applicant’s neighbouring home provide on Non Bua Lam Phu,Thailand, where the parties hoped to retire.

2. The sponsor in the present matter has not given other evidence, however an account of the relationship and its ensuing difficulties appears in his supporting evidence for the applicant’s permanent visa. He stated:

   “Phatsikam and I continue to be in an ongoing relationship despite an argument which happened around the time the department was notified in late December 2016.

   We are both incredibly self-determined and headstrong which was a problem for us in the earlier years of our relationship. The combined stresses of running a business together and miscommunication left us in a heated argument. We have both come such a long way since then - we’ve grown mentally, emotionally and spiritually.

   Having gone through those challenges in the time we've been together, I have profound amount of respect and love for her that I continue to cherish to this day. In April of last month, we invited Phatsikam's son, Wachirawich (Season) to visit us here in Australia so as to give him a glimpse into the Australian way of life. We hope that this inspires him to further his English studies in Thailand which could lead to an opportunity for him to further his studies here In Australia in the future. Phatsikam and I both continue to focus on establishing ourselves financially so that we may support him should he wish to move here, but to also be financially comfortable enough that we have options in the future.”

3. The Tribunal has considered the statements above, which the Tribunal finds to be reasonably credible because it is consistent with the applicant’s evidence and that it points clearly to a relationship having existed. This is supported by the fact that the sponsor organised the visit of the applicant’s son to Australia in 2018, which is a matter of departmental and photographic record. It is unlikely, in the Tribunal’s view, that the sponsor would have pursued such a course if he did not have a long-term view of the relationship. The Tribunal accepts there was a long-term intention for the relationship on both sides, until such time as the relationship hit the rocks and ultimately, ceased to exist.

4. It is evident to the Tribunal that the degree of companionship and emotional support the parties drew from each other was limited by suspicion and jealousy. The sponsor, through his travels and outings with female companions, fed the perceptions of infidelity, however there is no convincing evidence before the Tribunal that he had anything other than a friendly or even a business relationship with anyone. The applicant has alluded to her suspicion and jealousy, however states she saw nothing concrete and the issues may well have been in her apprehension about her security in the relationship, borne out of her experiences in the relationship with her son’s father.

5. There can be no doubt the parties were engaged in significant turmoil throughout their time together, nor that the sponsor had an aggressive manner of speaking and a rush to ugly judgment. In the text message extracts provided on review, the sponsor makes vulgar accusations that are aggressive and sexually explicit in nature, and he slights the applicant’s son, whom he claims to care for.

6. An element of genuine commitment in this relationship, while it lasted, is not fatally impaired by the conflicts described above, however. The relationship was clearly distressing, but it continued for some years. There is considerably more detailed information before the Tribunal at the time of review than was provided to the department for the primary decision. Because of this, the Tribunal is not persuaded, as the delegate was on the information presented at the time, that the relationship was not a relationship, rather a union of business partners with a romantic entanglement. In forming a view on this aspect, the Tribunal is mindful of the authority in [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15]. The Tribunal is satisfied that there is a logical conclusion to be drawn that a relationship existed, however unsatisfying it was, from the time the parties travelled to Thailand in 2013 until August 2018.

7. There is an allegation of family violence in this relationship, the applicant having provided a non-judicially determined claim that the sponsor in mid-2016, challenged about his plans to go out with female friends and without his partner on his birthday, physically abused the applicant and caused her considerable hurt and bruising. The claim, which will be assessed in more detail later, also contains credible findings of emotional abuse and controlling behaviour on the part of the sponsor. Expert declarants conclude that the applicant suffered family violence in 2016.

8. The claim, combined with the findings above, tends to support a conclusion that there was a relationship between the parties in the years 2013-2018, albeit a dysfunctional one. The Tribunal is satisfied it was a relationship conceived as genuine and intended for the long-term, until it ceased to be.

Conclusion on the relationship

1. The Tribunal, having considered all the circumstances of the relationship as specified finds that while the relationship existed, there was a mutual commitment to a shared life to the exclusion of others, insofar as no third party relationship has been substantiated to draw an opposite conclusion. Further, there appears to have been for some years, a genuine and continuing relationship. It is evident also that the parties lived together and not separately and apart on a permanent basis, until they parted in 2018.

2. There is no evidence before the Tribunal that the parties are related by family.

3. On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time of this decision. Therefore, the applicant meets cl 801.221(2)(c).

Are the additional criteria for a de facto relationship met?

1. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

2. The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

3. In the present matter, there is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement.

4. The applicant and sponsor have provided documentary and in the applicant’s case, oral evidence that the parties entered into the relationship in February 2013 when they began cohabiting at UniLodge, shortly after the applicant arrived onshore on 13 March 2013. The visa application was lodged on 17 October 2014. For these reasons, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.

5. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

Has a claim of family violence been made under the regulations?

1. As indicated earlier in these reasons, the relationship has ceased and the applicant is seeking to avail herself of the family violence exception in cl 801.221(6)(b) and (c). Under reg 1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with reg 1.24 is provided.

2. The applicant in this case is relying on evidence referred to in reg 1.24; namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes [IMMI 12/116].

3. A statutory declaration under reg 1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).

4. The applicant has provided a statutory declaration consistent with the requirements of reg 1.25(2) in that it sets out the allegation of family violence and names the sponsor whom she alleges committed the violence against her. She also alleges the sponsor verbally and emotional abused and taunted her, including about her son, until the cessation of the relationship in August 2018. She has provided photographs taken on 12 and 16 July 2016 of dark bruises to her arms; a report by general medical practitioner Dr John Skala of Central CBD 7 Day Medical Centre in Brisbane CBD, a contemporaneous hospital report and a medical certificate from medical practitioner Dr Mayumi Yoshida of Sakura Family Clinic of Brisbane CBD, who referred the applicant for psychological counselling. The applicant provides a detailed statutory declaration concerning the alleged violence from registered psychologist Dr David Marshall of Wickham Terrace, Brisbane.

5. In his declaration of  5 December 2019, Dr David Marshall describes the outcomes of nine sessions conducted with the applicant between July 2019 and 5 December 2019, as part of a counselling program he describes as ‘continuing’. Dr Marshall sets out the results of standard formal psychological tests he conducted with the applicant, and finds that Ms Sirisukthananun was subjected to family violence by Mr Donohue, having experienced bullying, physical abuse, emotional abuse, deceitful behaviour, threats, intimidation, angry outburst and verbal abuse from her sponsor.

6. The applicant provided a medical letter dated 7 October 2018 from Dr John Skala, a general practitioner, stating that she had suffered severe mental and some physical abuse over the previous two and a half years and that he had referred her to a psychiatrist for treatment (that was ultimately unsuccessful).

7. For the reasons above, the Tribunal is satisfied the evidence provided by the applicant meets the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23.

Has the applicant suffered family violence?

1. Aside from the documentary evidence above, the Tribunal has had the benefit of hearing oral accounts from the applicant at an in-person hearing, aided by an interpreter but also given in parts in clear English. The Tribunal found the applicant to be a credible witness, well presented and reasoned. She was emotional from the start of her evidence, and she displayed strong focus, to the point of distraction, on the reasons for the failure of the relationship and the trauma she experienced within it, rather than dwelling on her immigration worthiness, rather she returned frequently to the injustice she felt she had suffered in a failed relationship, and examined the extent of her own contribution to its failure. This for the Tribunal, tended to confirm she is a truthful witness who has experienced real trauma in what was conceived as a loving relationship. The Tribunal considers the applicant’s accounts correlate closely and credibly with the observations and findings of Dr Marshall and Dr Skala. She presented as an intelligent and capable person, affected by her circumstances but modestly proud of her business achievements and the employment of 20 or so people in her two-site, professionally presented CBD business.

2. Having considered all of the evidence before it, the Tribunal finds it to be compelling in nature and is satisfied, for the purposes of reg 1.23, that the applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship. The Tribunal is satisfied that the evidence presented is sufficiently convincing and compelling and that the opinion of an independent expert, in the particular circumstances of this matter, is not required. As such, the applicant is taken to have suffered family violence in the relevant sense: reg 1.22.

3. Accordingly, the Tribunal is satisfied that there are compelling and compassionate circumstances for the grant of the visa.

4. 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 801.221(6)(b) and (c). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

decision

1. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

   ·cl 801.221(2)(c) of Schedule 2 to the Regulations

   ·cl 801.221(6)(b) and (c) of Schedule 2 to the Regulations

   ·reg 2.03A

Meredith Jackson
Member

ATTACHMENT - Extracts from Migration Regulations 1994

1.09A     De facto partner and de facto relationship

(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).

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

1. For these Regulations, this regulation explains when:

   (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

1. 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.

2. 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

1. 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.

2. 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

1. 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.

2. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.