Venter (Migration)

[2022] AATA 3864

Venter (Migration) [2022] AATA 3864 (14 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joachim Marthinus Venter

REPRESENTATIVE:  Mr Gerrit Jansen Van Rensburg (MARN: 1175375)

CASE NUMBER:  1935160

HOME AFFAIRS REFERENCE(S): BCC2019/1846268 BCC2019/6737373 BCC2019/6737380 BCC2019/6737385

MEMBER:P. Maishman

DATE:14 October 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

Statement made on 14 October 2022 at 2:27pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased – genuine and continuing relationship before family violence – parties separated – non-judicially determined claim of family violence – psychologist’s evidence not a statutory declaration – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.15, 1.21, 1.23 – 1.25

CASES

Hasran v MIAC [2010] FCAFC 40
He v MIBP [2017] FCAFC 206

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 December 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 April 2019 on the basis of his relationship with his sponsor. At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. 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 to be 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 suffered family violence committed by the sponsor: cl 820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.211(2)(a) because the delegate was not satisfied the applicant was the spouse or de facto partner of his sponsor.

5. On 29 July 2022 the applicant’s authorised representative was sent a notice inviting the applicant to appear before the Tribunal on 17 August 2022 to give evidence and present arguments. On 8 August 2022 the Tribunal received an email on the applicant’s behalf including a response to the invitation to attend a hearing, indicating the applicant and his authorised representative would attend the hearing. The email included a bundle of documents, replicating those previously provided to the Department as listed in the delegates decision record. The email claimed the applicant had not heard from his registered migration agent representative.

6. On 8 August 2022 the Tribunal wrote to the applicant to advise the hearing had been postponed to 1 September 2022.

7. On 8 August 2022 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide information to support his claim to have suffered family violence in writing.

8. The Tribunal acknowledges the indication the applicant had not heard from his authorised representative. However, the Tribunal notes the applicant provided a signed confirmation of his attendance at the hearing listed for 17 August 2022 and did not attend that hearing, which was cancelled and rescheduled by notice dated 8 August 2022. The Tribunal concludes the applicant did receive communication from his authorised representative on or after 8 August 2022 including details of the cancelled and rescheduled hearing and the notice pursuant to s 359 of the Act, both dated 8 August 2022.     

9. The invitation to provide information was sent on 8 August 2022 to the last address provided in connection with the review and advised that, if the information was not provided in writing by 22 August 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

11. On 23 August 2022 the Tribunal advised the applicant, via his authorised representative, he has lost his entitlement to a hearing and that the hearing scheduled for 1 September 2022 had therefore been cancelled.

12. The applicant was represented in relation to the review. Despite the applicant’s contention the representative has not contacted him, there is nothing before the Tribunal to suggest the applicant has withdrawn the representative’s authority to deal with the Tribunal on his behalf.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence

14. The Tribunal had before it a copy of the Departments files. The file contains a s 376 notification.

15. The applicant gave the Tribunal a copy of the delegates decision record with his application for review. The delegate did not consider the applicant provided sufficient information to demonstrate he was in a genuine spouse relationship with the sponsor. The applicant gave the Tribunal the documents replicating those listed on the delegates decision record (pp 2-3) on 5 and 8 August 2022 and 19 September 2022. The applicant gave the Tribunal a letter from Paul Smith of Midland Smash repairs attesting to the applicant’s character, and a written submission by the applicant’s representative dated 19 September 2022.

    Section 376 notification

16. On 6 September 2022 the Tribunal invited the applicant in writing to comment on the validity of the s 376 notification and the favourable exercise of the Tribunal's discretion to disclose that material.

17. On 19 September 2022 the applicant responded that he had no comment on the validity of the certificate or the favourable exercise of the Tribunal’s discretion to disclose that material.

18. The Tribunal is satisfied the s 376 notification is valid. The notification advises the Tribunal notified the Tribunal that s 376 of the Migration Act applies to documents/information contained in folios 1233-1249 and 1450 -1451 on its file BCC2019/6737385 because the information was given in confidence and the provider of the information has not consented to the disclosure of the information.

19. The Tribunal observes information contained in the documents to which the s 376 notification applies may adversely affect the applicant. The Tribunal has exercised its discretion to disclose the gist of that information in order to give the applicant the opportunity to respond.

Adverse information

1. Separately, on 6 September 2022 the Tribunal invited the applicant in writing to comment on the adverse information pursuant to s 359A of the Act. The adverse information is contained within the documents to which the s 376 notification applies. The Tribunal invited the applicant to comment on the gist of information that suggested his intention for marriage was not genuine but a way to gain access to an Australian visa.

2. The applicant provided a written response on 19 September 2022 disputing the suggestion his relationship with the sponsor was not genuine. The applicant claims he was truly in love with the sponsor and they had a wonderful time, causing him to trust her with his future. The applicant says he had other, cheaper, options to obtain an Australian visa which are now unavailable to him.

3. The information proposes the applicant’s personal state of mind is different to what the applicant claims his state of mind was. The Tribunal is unable to test the veracity of the adverse information by examining the source of that information. The Tribunal attributes more weight to the applicant’s view of his own state of mind.

4. Accordingly, the Tribunal gives that adverse information no weight as evidence of the applicant’s intention about his relationship being genuine.

   Issue

5. The issue in the present case is whether the applicant meets the requirements of cl 820.211(2) and, if so, whether the applicant has made a claim of family violence under the regulations.

   Whether the parties are in a spouse or de facto relationship

6. 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.

7. ‘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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of his marriage certificate showing he married the sponsor, and that marriage was registered in Perth. There is nothing before the Tribunal to suggest a marriage is not valid. 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?

9. The Tribunal notes the delegate’s view that the documentary evidence in relation to the reg 1.15A(3) matters is insufficient to demonstrate the applicant is the spouse, as defined, of his sponsor.

10. The applicant has essentially provided the same information to the Tribunal that was before the Department.

11. The Tribunal attributes some weight to the applicant’s statutory declaration declared on 5 October 2019.

12. The applicant’s submission on 19 September 2022 provides a list of evidence the applicant claims demonstrates his relationship with the sponsor was indeed genuine.

13. The applicant claims to have first met the sponsor on 8 August 2018 and they were married by October 2018 before the applicant returned to South Africa on 29 October 2018. The applicant then returned to Australia around the end of February 2019 to commence living with the sponsor as a married couple. The applicant subsequently declares he and the sponsor of been separated since 8 July 2019.

14. The Tribunal observes the relationship between the applicant and sponsor progressed very quickly from the time they first met, to the time they married, to the time they started living together and then the time they separated. In the Tribunal’s view the concentrated period of the applicant and the sponsors time together goes some way to explain the lack of evidence of the matters outlined in reg 1.15(3). The relationship has ceased less than five months after the applicant returned to Australia to live with his spouse. There is no opportunity for the applicant to demonstrate to the Tribunal the development and growth of his relationship with his spouse as may be expected in a relationship of some duration.

15. The Tribunal puts weight however on the facts that a valid marriage did take place. Unless the marriage is a sham, the Tribunal expects that the parties to a marriage have a significant commitment to each other.

16. In the circumstances of this application the Tribunal accepts the applicant and the sponsor had a mutual commitment to a shared life to the exclusion of others, considered their relationship to be genuine and continuing, and they lived together at the time of their application.

17. On the basis of the above the Tribunal is satisfied that the applicant was the spouse of the sponsor, as defined in s 5F(2), at the time the visa application was made.

18. The Tribunal gives weight to the applicant’s statutory declaration on 22 September 2019, and the Tribunal finds, that the applicants spouse relationship ceased from 8 July 2019.

19. Therefore the applicant meets the requirements of cl 820.211(2)(a).  

20. On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

21. 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).

22. 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?

23. 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.

24. 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 (see IMMI 12/116).

25. 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).

26. The applicant gave the Department a statutory declaration dated 22 September 2019 alleging he had suffered relevant family violence and named the sponsor as the perpetrator of that violence. The tribunal is satisfied the applicant’s statutory declaration dated 22 September 2019 meets the requirements of reg 1.25.

27. The applicant gave the Department a letter from his registered medical practitioner, Dr Masoud Tabriz, dated 20 September 2019. The letter identifies the applicant to have stated he was verbally and emotionally abused by his wife. The latter details psychological conditions for which the applicant was prescribed medication and was referred to see a psychologist.

28. The Tribunal is satisfied the letter from Dr Masoud Tabriz, dated 20 September 2019 matches that specified in IMMI 12/116.

48.   The applicant gave the Department a letter from a psychologist, Mr Darren West, dated 16 September 2019. On 8 August 2022 the Tribunal wrote to the applicant and identified that the letter of Mr West did not meet the evidentiary requirements contained in IMMI 12/116 because it was not in the form of a statutory declaration. The Tribunal’s letter included a copy of the ‘Special Provisions Relating to Family Violence’ in Division 1.5 of the Regulations which specify what constitutes family violence and how claims are to be made and assessed. The letter also included a copy of the instrument IMMI 12/116. The letter invited the applicant to provide evidence in accordance with the statutory provisions in Division 1.5 of the Regulations.

49.   The applicant has not provided a second item of evidence specified in IMMI 12/116.

1. Therefore, 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.

2. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl 820.221(3) for the grant of the visa.

3. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

   decision

4. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

   P. Maishman
   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.