Tsang (Migration) - [2024] AATA 2780

Tsang (Migration) [2024] AATA 2780 (25 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Yuen Ting Chris Tsang
REPRESENTATIVE:  Mr Ted Chen (MARN: 0851770)
CASE NUMBER:  2004857
HOME AFFAIRS REFERENCE(S):          BCC2015/2531009
MEMBER:Tegen Downes
DATE:25 July 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 25 July 2024 at 9:19am
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – relationship ceased and non-judicially determined claim of family violence – financial pressures and verbal, emotional and financial abuse – genuine relationship accepted – sponsor’s return to home country – credible oral evidence and some corroborating evidence – declarations and reports from specified practitioners – no statutory declaration by applicant as required – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 376
Migration Regulations 1994 (Cth), rr 1.21, 1.23(8), (9)(c), 1.24, 1.25, Schedule 2, cl 801.221(6)(b), (c)
CASES
Gansham v MICMA [2023] FedCFamC2G 633
Karsten v MIBP [2015] FCCA 534
Lawani v MIAC [2013] FCCA 114
MIAC v Pham [2008] FCA 320
MICMSMA v Gupta [2022] FCAFC 51
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 February 2020 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 1 September 2015 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 delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant and the sponsor had been in a de facto relationship, within the meaning of the Act.
The applicant was represented in relation to the review.
The file provided to the Tribunal by the department includes a certificate and notification regarding the Tribunal’s discretion to disclose certain information under s 376 of the Act. It certifies that disclosure of the material covered by the certificate would be contrary to the public interest because it was provided in confidence or because it contains correspondence between the department and other departmental agencies the disclosure of which would enable a person to ascertain the existence or identity of a confidential source of information.
On 27 May 2024, the Tribunal set a letter to the applicant inviting them to make submissions on the validity of the certificate and whether I should exercise my discretion to release the information covered by the certificate. The applicant’s representative filed submissions in response on 3 July 2024.
I have considered the certificate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tsang (Migration)

Details

AGLC: Tsang (Migration) [2024] AATA 2780
Case: [2024] AATA 2780
Decision Date: 25 July 2024

CaseChat Overview and Summary

This matter concerned an appeal by the applicant against the Tribunal's decision to affirm the delegate's refusal to grant her a Partner (Residence) (Class BS) visa, subclass 801. The applicant, who is from Hong Kong, claimed to have been in a de facto relationship with an Australian permanent resident, also from Hong Kong. The applicant alleged that the relationship, which commenced in 2012 and ended in January 2019, involved verbal, emotional, and financial abuse by the sponsor, particularly after they began living together in 2016. The department had received information that the relationship had ceased in 2016.

The court was required to determine two primary issues: firstly, whether the applicant and the sponsor were in a de facto relationship for the purposes of the Migration Regulations 1994, and secondly, whether the applicant had made a non-judicially determined claim of family violence in accordance with the regulations. The applicant's eligibility for the visa hinged on satisfying the criteria for a genuine and continuing de facto relationship, which could be waived if the relationship breakdown was due to family violence.

In its reasoning, the court found that the applicant presented as a credible witness and that her oral evidence was supported by some corroborating evidence, despite some gaps. The court was satisfied, on the balance of probabilities, that the applicant and the sponsor were in a de facto relationship until its cessation in January 2019. However, the court noted that for a non-judicially determined claim of family violence to be considered under regulation 1.23(9)(c), the applicant was required to present evidence in accordance with regulation 1.24. The court found that the applicant had not provided a statutory declaration, which is a requirement under the Statutory Declarations Act 1959 and is implicitly required for the evidence to be considered "in accordance with regulation 1.24" in this context.

Consequently, the court affirmed the Tribunal's decision, concluding that the applicant did not meet the requirements for the grant of the visa, specifically cl 801.221(6), as she had not satisfied the criteria for a non-judicially determined claim of family violence due to the absence of the required statutory declaration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There is no general obligation on the Tribunal to point out what evidence is required to meet the family violence provisions, or to disclose its thought processes in advance of its decision as to why or whether evidence provided is deficient: Gansham v MICMA [2023] FedCFamC2G 633 at [87]–[91], MIAC v Pham [2008] FCA 320 at [51]–[54], Lawani v MIAC [2013] FCCA 114, at [53] – [55], Karsten v MIBP [2015] FCCA 534. CONSIDERATION OF EVIDENCE AND CLAIMSBackground The applicant is a 40-year-old woman from Hong Kong. At the time of application, she claimed to be in a de facto relationship with the sponsor, a now 36-year-old woman from Hong Kong who was an Australian Permanent Resident. The applicant claims to have met the sponsor in October 2012 in Hong Kong and to have commenced a relationship with her in November 2012. She claims that they started living together in Hong Kong in March 2013, that she relocated to Australia in June 2014 and that the sponsor joined her in Australia in August 2014. The applicant claims that she and the sponsor lived together as a couple in Brisbane between August 2014 and July 2015 and in Sydney from July 2015 until November 2016, at which time the sponsor returned to Hong Kong. She claims that they maintained a long distance relationship until the sponsor ended the relationship in January 2019. According to the delegate’s decision record, the department received information that the applicant and the sponsor’s relationship ended in 2016. The applicant claims that she suffered verbal, emotional and financial abuse committed by the sponsor. She claims that this abuse started in or about 2016 after the applicant and the sponsor rented an apartment together, which was created financial pressures in the relationship. The applicant claims that this abuse continued until the cessation of their relationship.Were the applicant and the sponsor in a de facto relationship? I have carefully considered the oral evidence given by the applicant, as well as the documentary evidence submitted before and after the hearing. The applicant presented as a credible witness at the hearing. She gave detailed answers to the questions asked of her. Her answers were also supported by some corroborating evidence, including evidence submitted after the hearing. There are some significant gaps in the corroborating evidence provided. However, I note that this is not unusual in matters where only one party to the former relationship gives evidence and where a substantial period of time has passed since the relationship ended. On balance, having regard to the evidence as a whole, I am satisfied that the applicant and the sponsor were in a de facto relationship, within the meaning of the Act, until the cessation of the relationship in January 2019.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, relevantly, the applicant has provided evidence in accordance with reg 1.24: reg 1.23(9)(c).

Decision

Reasons for decision

For the reasons above, the applicant does not meet the requirements of cl 801.221(6) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. Accordingly, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.Tegen DownesMemberATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 19941.21 InterpretationIn 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 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(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.

Ratio Decidendi

Legal Principle Established

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