Siyad (Migration)
[2025] ARTA 2129
•1 July 2025
SIYAD (MIGRATION) [2025] ARTA 2129 (1 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Shukria Mohamed Alasow Siyad
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2202006
Tribunal:General Member P Emmerton
Place:Adelaide
Date: 1 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 visa:
· cl 820.221(3) of Schedule 2 to the Regulations
Statement made on 01 July 2025 at 1:22pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased – genuine and continuing relationship before family violence – coercive control – joint utility and tenancy accounts – small friendship circle – non-judicially determined claim of family violence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.15, 1.21-1.25CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister on 2 February 2022 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 16 August 2018 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). 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).
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. Relevantly to this matter the primary criteria include cl 820.211 and 820.221 which require that at the time of application and decision, the applicant is 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 experienced family violence committed by the sponsor: cl 820.211(8)(d)(i) or (9)(e)(i) and 820.221(3)(b)(i). The applicant claims this occurred in this case.
The delegate, on 2 February 2022, refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 as they were not satisfied the applicant and sponsor were in a genuine spousal relationship.
The applicant appeared before the Tribunal, via Teams video on 20 May 2025 to give evidence and present arguments. The matter was adjourned in order for the applicant’s legal representative to prepare submissions in relation to alleged violence perpetrated against the visa applicant. The Tribunal was only made aware of the alleged violence immediately prior to the hearing on the morning of 20 May 2025. It confirmed the allegations with the Applicant and confirmed with both her and her legal representative that she was located in a safe place and was not under immediate threat of harm or under duress.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence.
The Tribunal has read and carefully considered all the evidence provided to the delegate and the Department prior to the delegate’s decision.
The Tribunal has read and carefully considered all the additional evidence provided to it prior to decision.
The Tribunal must first determine and be satisfied that a spousal relationship existed at the time of the visa application.
Whether the parties are in a spouse or de facto relationship
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had 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 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A Marriage Certificate clearly indicates the parties were validly married on 27 July 2018, in Brunswick Victoria, Australia and certified by the Registrar at the Registry of Births Deaths and Marriages on 7 August 2018. The Tribunal is satisfied the documentation is genuine. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
The review applicant lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa on 16 August 2018. The delegate refused the application on 2 February 2022.
The Tribunal has viewed the Passport details and reviewed the Departmental immigration data for both the sponsor and the visa applicant and has verified they are therefore beyond the age of 18.
The Tribunal has considered the documentary evidence provided to both the Department and the Tribunal.
The Tribunal has considered all aspects of the relationship. The Tribunal notes that in the period between the delegate’s decision of approximately 3.5 years and the review before the Tribunal, it has been possible to gather and present additional relevant evidence for consideration. It in addition notes and accepts the claim made by the visa applicant that the gathering of evidence has been made difficult by the attempts of her husband to not grant access to documents which would assist in proving the relationship was genuine at the time of the application. The Tribunal views this as a clear example of coercive control of a type it has encountered in past cases. Whilst such actions may limit physical evidence being brought forward it does in some secondary form add additional weight to arguments supporting the claims of family violence and abuse.
Financial Aspects
In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.
There are no indications of joint legal obligations other than those which occur as a normal consequence of a Governmentally recognised Marriage. The Tribunal notes the claims of financial interdependence from 2018 as stated in the Statutory Declaration made by the applicant on 13 June 2023. It also observes there is no current banking information supplied despite requests to do so. The most recent substantial recent financial information is the NAB joint bank account statement which goes up to January 2020, plus 2 brief statements as indicated below which jointly cover approximately 5 months in total.
The Tribunal notes the provision of Bank Statements in an account claimed to be joint but not labelled as such by the bank, this account covers the period of 23 February 2022 until 22 April 2022. The Tribunal has been able to link the account number with another statement mentioned in paragraph 20 of this decision which is labelled accurately as the joint account of both parties. There are a small number of transactions that could reasonably apply to household items but no indication of who is present in the household.
In the second brief Joint Bank Statements from 26 July 2022 until 24 October 2022 which are listed in both the sponsor’s and the applicant’s names there are a number of transactions which could reasonably be assessed as supporting living expenses and rent payment. Once again, no clear indication of joint utility of the funds. The lack of more current data supports the claim that the sponsor is uncooperative and using the non-sharing of key data as a form of control or possibly a form of punishment for noncompliance.
The Tribunal observes 2 Momentum Energy bills in joint names of both parties. It notes a second account in Joint names with Jacana Energy for a period of 10 days in November 2022. It also notes a Telstra Account issued in the sponsor’s name alone covering the periods of 27 November 2022 until 26 December 2022 and 27 April 2023 until 26 May 2023. It in addition indicates a small number of calls were made to Kenya at a time the applicant was travelling there.
It also acknowledges the Variation to a tenancy agreement indicating the applicant residing in the residence rented by the sponsor. In addition, a series of fortnightly Tenancy Receipts dated from 31 December 2021 until 24 October 2022 are issued in joint names.
There is no current evidence of Wills, Insurance Policies in favour of either of the claimed couple in favour of either of the couple in the event of the demise of the other person. It is accepted that 2 years post marriage a declaration or nomination in relation to Superannuation was made in favour of the applicant should the sponsor predecease her. It is surprising this was made 2 years after a marriage. There is no current evidence to indicate this continues and it is nonbinding and easily changed at any point in time. The Tribunal notes the representative on 20 May 2025, stated in response to the delegate’s concerns regarding the Superannuation nomination the following. … ‘The superannuation nomination was not created for the sole purpose of supporting the application. Rather, the nomination was made as a means to provide additional evidence of our relationship.’ …
There is no evidence provided to indicate the purchase of jointly owned major assets such as a house, land, vehicles or major appliances. This is unsurprising as the FIFO employment of the sponsor and the employment of the visa applicant in a different State would have mad such an action financially difficult and impractical.
The Tribunal notes the delegate’s concern regarding the sponsor’s failure to indicate the spousal relationship on his FY 2019 Taxation Return. It accepts the claim this was an error on the part of the Tax consultant at the time as the most logical explanation.
The Tribunal places substantial weight in favour of the couple being in a genuine spousal relationship in relation to the financial evidence provided.
Nature of the Household
When assessing the nature of the household the Tribunal has considered the domestic living arrangements, shared household duties, daily routines and caring for children.
The Tribunal accepts there is no evidence provided to indicate either the sponsor or the applicant have separate or joint responsibility for raising and caring for children. It is noted the applicant claimed in her Statutory Declaration dated 13 June 2023 that a miscarriage occurred whilst she was visiting family in Kenya. Medical evidence was provided to support the claim which the Tribunal accepts as genuine. It is not possible nor appropriate to determine the details surrounding the circumstances associated with the event.
The Tribunal observes the delegate raised concerns in relation to the fact that there appears to be 2 separate residences maintained in 2 separate States or Territories. The applicant claimed in her Statutory Declaration dated 13 June 2023 this was to facilitate her husband’s work in the NT and her work responsibilities in Victoria until August 2021, when she moved to the Northern Territory. The Tribunal accepts this is plausible and not unusual in a newly married couple. The Tribunal is aware that many couples undertake similar arrangements for a variety of reasons. Such examples include the majority Federal Politicians and Senators, their staff, Judicial officers and many business executives.
No evidence has been provided to show joint household responsibilities. In part it is claimed this is because they lived in an apartment and the FIFO work arrangements.
The Tribunal places moderate weight in favour of the couple being in a genuine spousal relationship based on the evidence provided in support of household factors.
Social aspects
In assessing the social aspects of the relationship, the Tribunal has considered social interactions, evidence of joint social activities, representation of their relationship to others and recognition of the relationship by friends and family.
The Tribunal acknowledges the provision of 8 unannotated photographs indicating a joint overseas vacation undertaken by the sponsor and applicant. None of them indicate the presence of or interaction with any family or friends. It is accepted this is because the applicant flew out of Victoria and the sponsor from Darwin, so they travelled separately.
The Tribunal notes a range of unannotated photographs indicating a marriage undertaken by the legally married sponsor and applicant. Only one indicates the interaction with 4 other members of family or friends. A claim has been made that the friendship circle is very small, and family were not present at the wedding because they were travelling overseas. The Tribunal believes that a genuine wedding is a significant event in a couple’s life and to undertake it without significant family and friends there to support and celebrate is unusual but not without precedent.
The Tribunal has read several Form 888 Statutory Declarations in support of the sponsor and applicant being a married couple. These basic statements were made by friends claiming to be familiar with the sponsor’s and the applicant’s lives together. An additional Statutory Declaration made by applicant is also acknowledged which claims the authenticity of the relationship. These documents were presented to the delegate in July 2020.
The Tribunal has been provided with 3 additional Statutory Declarations on Form 888 documents. They are very detailed, explain their observations of the relationship, its subsequent visible deterioration and the sever negative impact on the visa applicant. The Tribunal finds their evidence compelling as it clearly interfaces appropriately with the previous evidence presented to the delegate and the Tribunal.
The Tribunal again refers to its knowledge associated with coercive control and family violence. Isolation of the violated individual from family and friends is usually a key factor associated with and demonstrating such forms of abuse.
There has been substantial time since the delegate handed down their decision which indicated their concerns, to gather a portfolio of evidence to clearly demonstrate the legitimacy of the claimed relationship. This has substantially occurred in spite of the claimed attempts by the sponsor to thwart the applicant’s attempts.
The Tribunal gives this evidence substantial weight in support of the social aspects to support the claim of a genuine spousal relationship.
Nature of the Commitment
In relation to the nature of the commitment, the Tribunal considered the nature of the parties first meeting, relationship development, length of time living together, degree of companionship and mutual emotional support and whether they see the relationship as long term.
The Tribunal accepts the claims as to how the relationship developed as plausible and has no evidence before it to suggest otherwise.
The Tribunal once again notes the statement of a miscarriage whilst the applicant was travelling and meeting family overseas. Substantial medical evidence has been provided to the Tribunal to indicate the veracity of the claim.
The Tribunal acknowledges the statements of a strong emotional mutual commitment between the couple made by the applicant in her 2022 Statutory Declaration.
The Tribunal accepts the Marriage Certificate, the, lease agreements and financial evidence previously discussed as supportive of the legitimacy of the commitment as claimed by the visa applicant. It is not possible to test the commitment aspects in relation to the sponsor’s motivations at the time of the application. However, subsequent evidence of his behaviours as supported by Statutory Declarations and the Reports made by accredited Mental Health Social Workers suggest the possibility of differing motivations to those of the visa applicant.
The Tribunal gives the nature of the commitment factor moderate weight in relationship to the claims of a genuine relationship between the sponsor and the applicant at the time of application.
On the basis of the evidence, the Tribunal is satisfied the applicant, and the sponsor were in a spousal relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has experienced family violence committed by the sponsor, within the meaning of the Regulations.
A request was made to delay the hearing because the applicant was unable to attend, ‘Our client is unable to attend the Hearing on 20th May 2025 for a reason beyond her control and seeks an extension of time.’ With the subsequent revelation that the applicant was moving her abode at the scheduled hearing time, the Tribunal is fully accepting of the legitimacy and supportive of the appropriateness of the request.
Under reg 1.23 of the Regulations, a person is taken to have experienced 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 experienced relevant family violence or an opinion of an independent expert has been given that the alleged victim has experienced relevant family violence. Relevant family violence is defined in reg 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: reg 1.23(3), (5), (7), (12), (14).
In the present case the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence.
Has a claim of family violence been made under the regulations?
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.
The applicant in this case is seeking to rely 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, LIN 23/116.
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).
The Tribunal is satisfied the Statutory Declaration has fully complied with the requirements under reg 1.25.
The Tribunal has carefully considered the following documents as evidence of family violence committed against the visa applicant. Having carefully cross-referenced and compared the statements made in all of the documents listed below the Tribunal is satisfied the evidence aligns, and in its entirety convinces the Tribunal that a range of forms of family violence have taken place over a sustained period of multiple years. Detailed information has not been included in this decision as it may induce further trauma and reveal information that is not appropriately available to others or the estranged husband. For clarity the Tribunal states it has determined that family violence has occurred.
Report dated 28 April 2025 which details the counselling support given relating to family violence from 11 July 2023 onwards.
Detailed Statutory Declaration made on 30 May 2025, (name withheld by Tribunal), explaining the relationship, the developing abuse, and the impact upon the applicant.
Reference from the applicant’s employer dated 1 March 2025.
Detailed Statutory Declaration made on 28 May 2025, (name withheld by Tribunal), explaining the relationship, the developing abuse, and the impact upon the applicant.
Detailed Statutory Declaration made on 24 May 2025, (name withheld by Tribunal), explaining the relationship, the developing abuse, and the impact upon the applicant.
Detailed Assessment and Treatment Report dated 15 June, (name withheld by Tribunal), explaining their opinion on the abuse suffered by the applicant and their ongoing treatment.
Has the applicant experienced family violence?
Having considered all of the evidence before it, as detailed in paragraph 56 of this decision, the Tribunal is satisfied, for the purposes of reg 1.23, that the applicant has experienced family violence committed by the sponsor that occurred whilst the parties were in the relationship. As such, the applicant is taken to have experienced family violence in the relevant sense: reg 1.22.
As the relationship between the applicant and sponsor has ceased, and the applicant has experienced 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 set aside the decision under review and remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 visa:
· cl 820.221(3) of Schedule 2 to the Regulations
Representative for the Applicant: Mr Dimitri Bourne
ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
1.21 Interpretation
1.21 Interpretation
In this Division:
independent expert means a person who:
(a) is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and
(b) is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.
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.
statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.
violence includes a threat of violence.
1.23 When is a person taken to have experienced or committed family violence?
(1) For the purposes of these Regulations:
(a) a person (the alleged victim) is taken to have experienced 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 experienced family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have experienced family violence, and how those persons are related to the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator mentioned in this regulation.
Circumstances in which family violence is experienced and committed — injunction under Family Law Act 1975
(2) The alleged victim is taken to have experienced 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 experienced and committed — court order
(4) The alleged victim is taken to have experienced 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) the 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:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
Circumstances in which family violence is experienced and committed — conviction
(6) The alleged victim is taken to have experienced 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:
(a) the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator; or
(b) the relationship existed between the alleged perpetrator and the prospective spouse of the alleged perpetrator.
Circumstances in which family violence is experienced 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 experienced 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 experienced family violence; and
(b) the alleged victim is:
(i) a spouse or de facto partner, or the prospective spouse of, 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 the spouse or de facto partner of, or the prospective spouse of, the alleged perpetrator; or
(iii) a member of the family unit of a spouse or de facto partner of, or a prospective spouse of, the alleged perpetrator who has made a combined application for a visa with the spouse, de facto partner or prospective spouse (as the case may be); 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 experienced 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 experienced relevant family violence; and
(b) if the Minister is satisfied that the alleged victim has experienced 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 experienced the relevant family violence:
(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has experienced 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 experienced family violence.
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