To (Migration)

To (Migration) [2023] AATA 2250 (16 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Van Dung To
REPRESENTATIVE:  Ms Ngoc Tran (MARN: 1386096)
CASE NUMBER:  2017341
HOME AFFAIRS REFERENCE(S):          CLF2017/59373
MEMBER:Kate Millar
DATE:16 June 2023
PLACE OF DECISION:  Adelaide
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 visa:
·cl 801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Statement made on 16 June 2023 at 2:35pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Federal Circuit Court remittal – relationship ceased and claim of family violence – genuine relationship – validly married – sometimes limited evidence of financial, household and social aspects of relationship, and nature of commitment – applicant’s intervention order against sponsor – sponsor’s gambling, verbal abuse and physical assault – order made while sponsor in court and able to make submissions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 1.23(4), (5), Schedule 2, cl 801.221(6)(b), (c)(i)
Intervention Orders (Prevention of Abuse) Act 2009 (SA)
CASE
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr To is a citizen of Vietnam. He married Ms Huynh, an Australian citizen, in 2013 and applied for Partner (Temporary) and Partner (Residence) visas on 7 November 2013. His Partner (Provisional) visa was granted on 21 January 2014, and this matter is about the refusal of the Partner (Residence) visa.
On 26 June 2017, Mr To advised that his relationship with Ms Huynh had broken down, and claimed that he has suffered family violence committed by Ms Huynh. If Mr To was the spouse of Ms Huynh before the relationship ended and has suffered family violence, this is the basis for continuing to meet the criteria for the visa.
Mr To’s application for a Partner (Residence) visa was refused by a delegate of the Minister because the delegate was not satisfied that Mr To was the spouse of Ms Huynh as defined in the Migration Act 1958 (the Act) and Migration Regulations 1994 (the Regulations) before he said the relationship ended. This decision was affirmed by this Tribunal (differently constituted) as the Tribunal was also not satisfied Mr To was the spouse of Ms Huynh.
The Federal Circuit Court remitted this matter for reconsideration on 10 September 2020, and this is the reconsideration of this matter.
Mr To appeared before the Tribunal on 14 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence Ms Thi Loan Tran and Mr Thanh Phoung Thanh Tran. Mr To was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 August 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
At the time Mr To applied for the visa, Class BS contained Subclass 801. 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).
To be granted the visa, Mr To must meet the primary criteria for the visa. This includes cl 801.221 of Schedule 2 of the Regulations. This requires the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased, and certain circumstances exist. These circumstances include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl 801.221(6)(b), (c)(i). Mr To claims this occurred in this case.
In the circumstances of this particular case, the Tribunal is required to determine whether:
·     Mr To was the spouse of Ms Huynh as defined in the Act and Regulations
·     The relationship has ceased
·     Mr To has suffered family violence; and
·     The alleged family violence occurred while Mr To was the spouse of Ms Huynh
Was Mr To the spouse of Ms Huynh?
Mr To married Ms Huynh in Australia on 18 October 2013, and a copy of their marriage certificate has been provided. Mr To must therefore meet the definition of spouse in s 5F of the Act. This requires that the parties are 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 to the exclusion of all other, the relationship must be genuine and continuing and the couple must live together or not separately and apart on a permanent basis.
The consideration for determining if s.5F is met include the factors considered in r.1.15A of the Regulations. This includes the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the commitment. Each of these components contains a number of integers, each of which is effectively a question to be answered (He v MIBP [2017] FCAFC 206).
(a)Financial aspects of the relationship
The financial aspects of the relationship include:
(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.
In a statement dated 27 July 2017, Mr To says Ms Huynh worked full time and earned just over $1,200 pe fortnight. He was unable to obtain full time employment but did limited casual farm work earning around $700 pe fortnight. He would give his wife most of his pay and she would do the shopping and use his contribution for food and household expenses. Their rent included their electricity and gas and they did not have a landline telephone. They did not have saving or holidays due to his wife’s gambling problem
A statutory declaration from their landlord said she would collect rent from either Mr To or Ms Huynh. Because she knew Ms Huynh’s family, she did not see the need for a lease. She states she believes they shared the rent. Mr To provide illegible documents which he said were rent receipts.
A copy of an account confirmation for a Commonwealth bank joint account was provided but without any transactions.
The Tribunal finds the parties did not have joint ownership or real estate or other major assets and did not have joint liabilities or owe legal obligations in respect of the other. They pooled the limited financial resources available to them and shared day to day expenses.
(b)Nature of the household
The nature of the household includes:
(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.
Mr To in his statement said that they rented a granny flat with one bedroom and a common kitchen/living/dining area. He was responsible for household chores as his wife worked full time. His wife did not enjoy his cooking so he would prepare food and she would cook. They would talk at mealtimes and watch TV together.
The parties did not have joint responsibility for children as Ms Huynh’s children were adults but did live together and share household tasks.
(c)Social aspects of the relationship
The social aspects of the relationship include:
(i)Whether the persons represent themselves to other people as being in a married 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.
Mr To lists activities such as going to the beach, shopping, visiting friends, having dinner with other Vietnamese couples and participating in cultural events. Their activities were with the Vietnamese community due to his lack of English.
A statement was provided in 2017 from Mr The Phoung Thanh Tran, who also gave oral evidence to the Tribunal. In her statutory declaration Mr Tran states he attended the wedding and went to their house on many occasions, and they had visited his house on many occasions. He states their separation came as a surprise as he was under the impression they were a happily married couple.
A statement by Ms Thi Loan Tran from 2017 also states in similar terms that they have seen Mr To and Mr Huynh together on a number of occasions. Ms Tran also provided another statutory declaration dated 13 April 2023 and said they would often come to her house to sing karaoke and socialise
Mr Van Tun Ho states that Mr To and Ms Huynh rented his mother’s granny flat and would call in to visit them. It is declared Mr Hoi believes they were in a genuine and continuing relationship that was ended by domestic violence.
Photographs were provided of them attending a wedding together, and on other social occasions.
Ms Huynh’s adult daughter provide a statement that she, her brother, Ms Huynh and Mr To lived together until she and her brother moved out in January 2016. She states Mr To and Ms Huynh lived together as a couple.
The Tribunal has had statutory declarations and oral evidence from witnesses that the parties represented themselves as being in a married relationship, and that the witnesses believed they were in a married relationship. They provided photographs and statutory declarations form witnesses that they undertook joint social activities.
(d)Nature of the commitment to each other
The nature of the commitment comprises:
(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.
Mr To in his statement said they were from the same culture and while in Vietnam did not have any difficulty communicating their needs and expectations. They could not plan omg term due to the lack of money. He was willing to migrate to Australia to be with his wife and was reliant on her when he arrived.
At the time they separated they had been married for nearly four years. They levied together in that time. While the relationship was deteriorating, the Tribunal accepts that prior to spearing they provide each other companionship and emotional support and saw the relationship as long term.
Conclusion – Mr To was the spouse of Ms Huynh
Having considered the factors in r.1.15A of the Regulations, the Tribunal is satisfied that the parties were married, they were committed to a shared life to the exclusion of all others, the relationship was genuine and continuing and they lived together.
The Tribunal finds that Mr To was the spouse of Ms Huynh as defined by s 5F of the Act.
Has the relationship ceased?
Mr To notified the Department on 26 June 2017 that his relationship with Ms Huynh had ceased. Mr To said he had to move out on 30 May 2017. The Tribunal finds that the parties separated, and the relationship broke down, on 30 May 2017.
Has Mr To suffered relevant family violence?
Under reg 1.23(4) of the Regulations, a person is taken to have suffered or committed family violence if (among other circumstances) 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. As it applies in this case, the order must be made after the court has given the alleged perpetrator an opportunity to be heard or otherwise make submissions to the court.
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: reg 1.23(1).
Mr To provided an interim intervention order dated 14 June 2017 and a final intervention order dated 14 June 2017. These orders were made under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). In oral evidence he said Ms Huynh was present in court when the final order was made. He also said she had pleaded guilty to an assault on him, but the only consequence was that she had to stay away from him.
The Tribunal finds that an intervention order has been made, and that when the final intervention order was heard Ms Huynh was present in Court and given the opportunity to be heard or make submissions.
This means that Mr To is taken to have suffered family violence and Ms Huynh is taken to have committed family violence.
Did this occur while he was the spouse of Ms Huynh?
The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: reg 1.23(5).
In this case, both the interim intervention order and the final intervention order were made after Mr To says he separated from Ms Huynh. He was advised it was in issue whether the family violence had occurred while he was the spouse of Ms Huynh.
Mr To said the relationship started deteriorating at the end of 2015 when he found out Ms Huynh liked gambling. He said he would talk to her and ask her not to gamble to they had money to live. He said when this happened she would argue with him.
Mr To said that from 2015 when he learned she was gambling she started physically assaulting him and would cut his clothes and swear at him. He said he was frightened of the verbal abuse continuing and would try to calm her down.
Mr To said Ms Huynh would cut his clothes because when she was gambling she would tell him to go out and earn money. At times it was raining and he could not work on the farm so she would swear at him and cut his clothes.
Ms Tran said there were problems between Mr To and Ms Huynh because of her gambling and Mr To told her Ms Huynh kept asking for money. She said she had only seen Mr To injured once which was when they took him to the police.
The only information about family violence that occurred during the relationship was from Mr To who said his wife would hit him, cut up his clothes and verbally abuse him. The Tribunal infers from the intervention order granted at a later time that this supports his oral evidence of her earlier behaviour.
The Tribunal finds that at least some of the family violence occurred while Mr To was the spouse of Ms Huynh. This was swearing at him, hitting him and cutting up his clothes. This made him fear for his welfare or safety.
As the relationship between Mr To and Ms Huynh has ceased, and Mr To has suffered relevant family violence committed by Ms Huynh, he 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
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 visa:
·cl 801.221(6)(b) and (c) of Schedule 2 to the Regulations.
Kate Millar
Senior Member

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.

[2023] AATA 2250

16 June 2023

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice