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 and the representative’s submissions. I find that the certificate is valid, that it is signed and a public interest reason cited. I have decided not to release the information covered by the certificate because it would be contrary to the public interest. I do not consider the applicant has been disadvantaged by my decision because she is aware of the gist of the information from the department’s correspondence and the decision notice and because I have not given the information any weight in making my decision.
The applicant appeared before the Tribunal on 17 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant’s representative did not appear at the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUES AND LAW
This review application relates to an application for a partner visa to enable the applicant to remain in Australia as a permanent resident.
The applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence, for the purposes of cl 801.221(6) of Schedule 2 to the Regulations.
The family violence criteria require that ‘the relationship between the applicant and the sponsoring partner has ceased’. The relevant partner relationship (i.e. spouse or de facto, as defined in the legislation) must therefore have existed before it can be determined that the relationship ‘has ceased’. Accordingly, the first issue in the present case is whether a partner relationship existed between the visa applicant and the sponsor. If the Tribunal determines that the partner relationship never existed, the family violence exception to the relationship continuing does not arise for consideration.
Whether or not a relationship ever existed is ultimately a question of fact for the Tribunal. It is not bound to accept that a relationship did exist just because a delegate based their decision on the family violence criteria, nor, when reviewing a decision relating to a permanent partner visa, must it accept a previous decision to grant a provisional partner visa based on the relevant partner criteria being met, as being correct: MICMSMA v Gupta [2022] FCAFC 51. Rather, it is for the decision maker on the permanent partner visa application to make a decision by reference to their own assessment of the merits of the application, including the existence of the relationship, based on the materials before them.
If the Tribunal is satisfied that the requisite relationship existed, the second issue is whether the visa applicant suffered relevant family violence. Under reg 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 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 relation to non-judicially determined claims of family violence, the Tribunal must assess whether the evidence adduced for the purpose of satisfying regs 1.23(8) or (9) meets the statutory requirements, in particular reg 1.25 and, where relevant, reg 1.26 in respect of statutory declarations. It is irrelevant whether or not the claim was made first to the Department or the Tribunal in accordance with the Regulations. The provisions of div 1.5 and the frequent references made in the Division to the Minister do not confine the relevant family violence criteria to those cases in which the visa applicant has made a claim of family violence before the initial consideration of the visa application.
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 CLAIMS
Background
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).
Under reg 1.24, the required evidence is:
a.Statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
b.The type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
On 10 July 2024, the Tribunal wrote to the applicant. Relevantly, the letter stated:
Please note that at the rescheduled hearing on 16 July 2024, the Presiding Member intends to consider whether the applicant meets cl 801.221(6)(b) and (c) of Schedule 2 of the Migration Regulations 1995 (Cth), including:
·whether the applicant was, prior to the cessation of the relationship, in a ‘de facto relationship’ with the sponsor, within the meaning of section 5CB of the Migration Act 1958 (Cth); and
·whether the applicant has experienced family violence committed by the sponsoring partner.
Division 1.5 of the Regulations, attached to this letter, contains special provisions relating to family violence.
The Tribunal invites you to provide any additional information, in writing, by 15 July 2024. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you are unable to provide the requested information by 15 July 2024, you should contact us before this date.
The attachment to the letter included the wording of reg 1.24 and reg 1.25.
According to an email on the department’s file, the applicant’s former representative notified the department on 8 May 2019 that the applicant had instructed them that she suffered domestic violence committed by the sponsor and that evidence would be provided soon. No documentation was provided.
The following documentation was submitted to the Tribunal on 10 October 2021:
a.A statutory declaration from Grace Kit Ping Sham, Registered Psychologist, dated 20 September 2019;
b.Letter from Dr Yvonne Wang, General Practitioner, dated 17 December 2019;
c.Invoice from New Vision Psychology dated 29 September 2021;
d.Psychological Assessment Report from Erica Yi Ki Chow, Registered Psychologist dated 8 October 2021.
Neither the department nor the Tribunal received a statutory declaration made by the applicant under reg 1.25. Accordingly, the evidence presented does not meet the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has not been made under reg 1.23.
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 Downes
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
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 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.