Vo (Migration)

[2023] AATA 880

Vo (Migration) [2023] AATA 880 (24 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Tam Huyen Vo

REPRESENTATIVE:  Mr Hunter Te (MARN: 1804811)

CASE NUMBER:  1813411

HOME AFFAIRS REFERENCE(S):          BCC2016/2965723

MEMBER:Mila Foster

DATE: 24 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl 820.211(2) of Schedule 2 to the Regulations

·cl 820.221(3) of Schedule 2 to the Regulations

Statement made on 24 March 2023 at 11:15am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 –relationship ceased– has been the victim of family violence – a non-judicially determined claim of family violence – the parties were validly married – applicant was the spouse of the sponsoring partner at the time of application – applicant suffered family violence committed by the sponsoring partner during their relationship – decision under review remitted   

LEGISLATION
Migration Act 1958, ss, 5F, 65, 359, 375
Migration Regulations 1994, rr 1.21, 1.23, 1.24, Schedule 2, cls 820.211, 820.221

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 30 April 2018 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 6 September 2016 on the basis of her relationship with her sponsoring partner, Peter Nguyen. 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. Relevantly to this matter the primary criteria include cl 820.211 and cl 820.221 which require at the time of application and decision, the applicant to be the spouse or de facto partner of the sponsoring partner, 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 sponsoring partner: cl 820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in her case.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(a) because he was not satisfied that there was a genuine and continuing spouse relationship between the applicant and the sponsoring partner.

5. The applicant appeared before the Tribunal on 9 December 2022 to give evidence and present arguments.

6. The applicant was represented by various persons over the course of the review. Her current representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, the applicant claims the relationship with the sponsoring partner has ceased, and she has been the victim of family violence.

9. The evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application, the oral evidence the applicant gave at the hearing, and additional documentary evidence submitted on review before and after the hearing.  

10. The visa application included an ‘Application for migration to Australia by a partner’ form completed by the applicant, a ‘Sponsorship for a partner to migrate to Australia’ form completed by the sponsoring partner, written statements, statutory declarations photographs and many documents relating to the relationship between the applicant and sponsoring partner.

11. The Department file contained a non-disclosure certificate and notification issued on 2 July 2018 under s 375A. The certificate related to a folio on the Department file regarding an allegation received by the Department. The delegate disclosed the allegation in his decision record noting that there was an allegation that the relationship between the applicant and the sponsoring partner was contrived (which he said he had not taken it into account). As it is required to do, the Tribunal informed the applicant of the existence certificate and invited her to make submissions on the validity of the certificate.[1] However, No submissions were received from the applicant or her representative at the time, Stanley Chen.

    [1] Letter dated 17 June 2022.

    Background and summary of claims

12. The applicant claims to be a 43-year-old Vietnamese national. According to the delegate’s decision record, the applicant applied for the Partner visa having arrived in Australia on a visitor visa on 8 June 2016 which she also held at the time of application. According to the visa application form the applicant’s adult daughter, parents and sister were residing in Vietnam.

13. It is claimed that the sponsoring partner is a 58-year-old Australian citizen by grant. At the time of application, his parents and five sisters were said to be residing in Vietnam, his brother and 11-year-old child living in Australia.

14. The applicant and sponsoring partner (the parties) claimed they met in Cabramatta in New South Wales (NSW) on 6 August 2015 (during the applicant’s previous visit to Australia), and that they committed to a shared life together to the exclusion of all others when they married in Fairfield West in NSW on 4 September 2016.

15. It is claimed that both the applicant and sponsoring partner had previously been married. The applicant’s previous marriage ended by divorce on 29 December 2015 and the sponsoring partner’s marriage ended by divorce on 13 April 2015.

16. On 28 April 2021 the applicant’s then representative, Robert Liu, submitted a number of documents including statutory declarations and statements from various people about the parties’ living arrangements, their relationship, how the sponsoring partner treated the applicant during their relationship, and an incident that occurred on 14 May 2019 when the sponsoring partner hit the applicant with a broom. There was no statutory declaration or statement from the applicant nor supporting submission from Mr Liu.

17. In response to an invitation from the Tribunal to provide additional evidence and submissions about the parties’ relationship and the family violence claim, the Tribunal received a document titled ‘Relationship Statement’ made by the applicant on 22 July 2022.  It detailed the history of the parties’ relationship but not the family violence.

18. On 8 August 2022, the Tribunal invited the applicant to comment on the gist of the allegation received by the Department given its relevance to the question of the genuineness of the parties’ relationship. The Tribunal received a response from the applicant dated 12 September 2022 in which she denied that the parties’ relationship was not genuine.

19. After the hearing the Tribunal received a statutory declaration made by the applicant on 24 December 2022 regarding an instance of family violence committed by the sponsoring partner on 14 May 2019 which led her to leave the residence she shared with the sponsoring partner and end their relationship.

    Were the parties in a spouse relationship?

20. ‘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).

    Were the parties validly married?

21. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Submitted in support of the visa application were the parties’ marriage certificate, a divorce certificate relating to the applicant’s previous marriage, a certificate of marital status issued with respect to the applicant indicating she was not married when she married the sponsoring partner, and a divorce certificate relating to the sponsoring partner’s previous marriage. On the evidence, the Tribunal is satisfied that 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?

22. The applicant submitted a considerable amount and range of documentary, written and photographic evidence to the Department about the financial and social aspects of their relationship, the nature of their household and the nature of persons' commitment to each other. In the Tribunal’s opinion the information and evidence the applicant provided to the Department strongly indicates that at the time of application the parties had a mutual commitment to a shared life as a married couple to the exclusion of others, they were in a genuine and continuing relationship, and they were living together. The additional evidence provided on review, statutory declarations and statements from many people who knew and interacted with the parties during their relationship, reinforces such a conclusion. In the opinion of the Tribunal the totality of the evidence outweighs the anonymous allegation made to the Department. On the evidence before it and having regard to all the matters specified in reg 1.15A(3), the Tribunal finds that at the time the visa application was made the applicant and sponsoring partner had a mutual commitment to shared life as a married couple to the exclusion of others, were in a genuine and continuing relationship, and were living together.

    Conclusion

23. In light of above the Tribunal is satisfied that the requirements of s 5F(2) were met at the time of application and hence that the applicant was the spouse of the sponsoring partner at the time of application.

    Finding on cl 820.211(2)

24. According to an Australian citizenship certificate included in the visa application, the sponsoring partner was granted Australia citizenship on 15 November 1995. As the spouse of an Australian citizen at the time of application the applicant satisfies cl 820.211(2)(a)(i). Further, as the sponsoring partner was not a prohibited sponsor at the time of application (he was not a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application) cl 820.211(2)(a)(ii) is met. The applicant thus meets the requirements of cl 820.211(2)(a).

25. The Tribunal is satisfied on the basis of the sponsorship form included in the visa application that the applicant was sponsored by the sponsoring partner. The Tribunal is satisfied on the documentary evidence before it that both the applicant and sponsoring partner had turned 18 at the time of application. Therefore, the requirement in cl 820.211(2)(c) is met.

26. As the applicant was the holder of a substantive visa, namely a visitor visa, at the time of application the additional requirements in cl 820.211(2)(d) do not apply to her.

27. On the basis of the above findings, the applicant meets the requirements of cl 820.211(2).

    Cessation of relationship

28. The applicant claims and several supporting statutory declarations and documents confirm that her relationship with the sponsoring partner ended on 14 May 2019 when she left the residence she shared with him. The Tribunal is satisfied on the evidence before it that the parties’ relationship has ceased.

    Has a claim of family violence been made under the regulations?

29. 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).

30. In the present case the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence.

31. 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.

32. 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. The current instrument IMMI 12/116 specifies a minimum of two different types of evidence listed in Schedule 1 of the instrument.

33. 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).

34. The Tribunal finds that the statutory declaration made by the applicant on 24 December 2022 meets the requirements of reg 1.25(2). The applicant claims that she was the victim of family violence committed by Peter Nguyen and she sets out the allegation of family violence. Further, the Tribunal finds that the statutory declaration made on 19 December 2022 by Anh Linh Pham, a social worker who is a member of the Australian Association of Social Workers, and the medical report made on 18 June 2019 by Dr Don Nguyen, a registered medical practitioner performing the duties of a medical practitioner, are two types of the evidence specified in IMMI 12/116. Therefore, the evidence presented meets the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23.

    Has the applicant suffered family violence?

35. On the basis of the applicant’s statutory declaration, Ms Pham’s statutory declaration, Dr Nguyen’s report as well as other supporting evidence submitted on review,[2] the Tribunal is satisfied that on 14 May 2019 the sponsoring partner hit the applicant with a broom which, combined with his previous behaviour towards the applicant, caused her to reasonably fear for her safety and to end the parties’ relationship. Having considered all the evidence before it, the Tribunal is satisfied, for the purposes of reg 1.23, that the applicant has suffered family violence committed by the sponsoring partner that occurred whilst the parties were in the relationship. As such, the applicant is taken to have suffered family violence in the relevant sense: reg 1.22.

    [2] Letter from Dr Diep Giang dated 11 June 2019; statutory declaration made by Michael Thai on 24 July 2020; report by Wilson Wong, clinical psychologist, dated 4 September 2020; statements made by Huynh Thi Hoang Cuc on 14 March 2021, Thi Hong Hanh Nguyen on 15 March 2021 and Nguyen Thi Thanh Hien (undated); and ‘statutory declaration’ made by Thi Ngoc Hung Huynh (undated).

    Finding on cl 820.221

36. The Tribunal has found that the applicant satisfied cl 820.211(2). The Tribunal has found that parties’ relationship has ceased and that the applicant suffered family violence committed by the sponsoring partner during their relationship. The Tribunal thus finds that the applicant would continue to meet the requirements of cl 820.211(2) except that the relationship between the applicant and sponsoring partner has ceased and the applicant has suffered relevant family violence committed by the sponsoring partner. The applicant therefore meets the requirements of cl 820.221(3). Hence, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

37. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations

    ·cl 820.221(3) of Schedule 2 to the Regulations

    Mila Foster
    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.