Wadhwa (Migration)

[2024] AATA 3689

Wadhwa (Migration) [2024] AATA 3689 (2 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Atul Wadhwa

REPRESENTATIVE:  Mrs Catherine Coleman

CASE NUMBER:  1934427

HOME AFFAIRS REFERENCE(S):          BCC2015/3864747

MEMBER:Edward Howard

DATE:2 August 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl 100.221(2) of Schedule 2 to the Regulations

Statement made on 02 August 2024 at 4:26pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 – relationship breakdown – a result of family violence which the sponsor perpetrated upon the review applicant – the parties maintained a genuine and continuing relationship prior to the marriage breakdown – Tribunal is satisfied that the review applicant has experienced the relevant family violence –decision under review remitted 

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.15,1.23, Schedule 2, cl 100.221

CASES

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 15 November 2019 to refuse to grant the review applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review applicant applied for the visa on 7 December 2015 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). 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.

4. The delegate in this case refused to grant the visa on the basis that the review applicant did not satisfy cl 100.221(2)(b).

5. The review applicant’s application was previously constituted to another Member of the Tribunal. The review applicant appeared before that Member of the Tribunal on 12 April 2024 to give evidence and present arguments. The review applicant’s application was subsequently constituted to the current Member, who has had the benefit of reviewing the Hearing, together with all the evidence and submissions provided by the review applicant and his representative.

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

   ISSUES AND LAW

7. There is a two-stage process for offshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the second, permanent stage.

8. The issue in the present case is whether the review applicant is able to satisfy the criteria set out in cl 100.221 at the time of this decision.

   Whether the parties are in a spouse or de facto relationship

9. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen.

10. In the present case the review applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.

11. ‘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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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?

    Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

13. The parties were married in August 2015 and subsequently lodged a combined Partner Visa (309/100) on 14 December 2015. The review applicant was granted a Subclass 309 Partner (Provisional) Visa on 10 February 2017.

14. The parties provided only minimal evidence of the financial relationship between them. The review applicant had had periods of unemployment and the sponsor financially supported the family for a period of time, at one point working two jobs in order to do so.

15. The Tribunal is satisfied that whilst there has been limited periods where they were both working, on the evidence of the parties, they did pool their resources for  day-to-day household expenses and other financial commitments. The Tribunal is satisfied that both parties have contributed to the financial relationship of the marriage although the sponsor contributed more significantly. The Tribunal weighs the financial aspects of relationship in favour of the review applicant.

    Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

16. The parties provided extensive evidence relating to the household as a married couple. This includes evidence relating to the tenancy agreements for the homes that they have lived in, together with payments and receipts including the lodgement of the rental bond.

17. The parties also provided documents relating to the return of the rental bond at the conclusion of the tenancy and correspondence relating to the joint tenancy. They have also provided correspondence to utilities providers evidencing their address as a couple at their place of residence.

18. The evidence of the review applicant is that the relationship broke down in 2022 and they separated, as a result of family violence which the sponsor perpetrated upon the review applicant over a period of five years.

19. The Tribunal is satisfied that, whilst they remained cohabiting as a married couple, the parties’ household and living arrangements were consistent with that of a married couple in a genuine relationship. The Tribunal weighs consideration of the household aspects of the relationship in favour of the review applicant.

    Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

20. The parties have provided evidence, supporting their claim of being a married couple in a genuine relationship, including statements by acquaintances attesting to their relationship. The Tribunal places weight upon the statements in support provided on behalf of the parties.

21. The parties also provided a selection of photographs of themselves alone in the company of other people.

22. The Tribunal is satisfied on the evidence that the parties represent themselves to other people as being married to each other, that they hold the favourable opinion of others about the nature of the relationship and that they regularly plan and undertake joint social activities. The Tribunal weighs the social aspects of the relationship in favour of the review applicant.

    Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

23. The parties were married in August 2015. They applied for a combined Partner Visa  (309/100) on 7 December 2015. They were granted a Subclass 309 Partner Provisional Visa on 10 February 2017. The parties were married for approximately seven years until the marriage broke down as a result of alleged family violence on the part of the sponsor.

24. Prior to the marriage breakdown, the evidence before the Tribunal is that the parties maintained a genuine and continuing relationship as a married couple. From the evidence provided, the Tribunal finds that the parties were in a genuine and continuing married relationship and clearly saw the relationship as long-term.

25. Pursuant to cl 100.221(1), in order to be eligible for the grant of a Subclass 100 (BC) visa, the review applicant must also continue to meet the requirements of clauses 100.221(2),(2A),(3),(4),(4AA) or(4A) at the time of this decision. Having regard to the evidence before the Tribunal of the separation of the parties, this threshold is, prima facie, unable to be satisfied. However, the review applicant has claimed that he was subjected to family violence committed against him by the sponsor prior to their separation. Clause 100.221(1) can alternatively be met if, relevantly, the requirements of cl 100.221(4) are met.

26. Clause 100.221(4) of the Regulations states, relevantly, that an applicant meets the requirement of the subclause, where they are the holder of a Subclass 309 (Partner (Provisional)) visa and would meet the requirements of cl 100.221(2) or (2A) except that the relationship between them and the sponsoring partner ceased due to family violence committed by the sponsoring partner against the applicant.

27. Regulation 1.23(10) and (11) of the Regulations state, relevantly, the following:

    Circumstances in which family violence is suffered and committed— non-judicially determined claim a family violence

    (10) (a) the Minister must consider whether the alleged victim has experienced relevant family violence; and

    (b) if the Minister is satisfied that the alleged victim has experienced the relevant family violence, the Minister must consider the application on that basis.”

    (11) the alleged victim is taken to have experience family violence, and the alleged perpetrator is taken to have committed family violence, if :

    (a) an application for a visa includes a nonjudicially determined claim the family violence; and

    (b) the Ministry is satisfied under paragraph 10(b) that the alleged victim has experienced relevant family violence .

28. The review applicant has provided a statutory declaration dated 8 April 2024, setting out the circumstances of family violence perpetrated against him by the sponsor. Further, the review applicant has provided a statutory declaration by Ms Erin Cumming dated 16 April 2024 setting out her detailed knowledge of the emotional, physical and psychological impacts of the family violence on the review applicant. The Tribunal has also received a report from Dr Muhammad Khan, psychiatrist, dated 23 April 2024, detailing the symptoms of post-traumatic stress disorder, panic disorder and major depression, “arising from his DV relationship”. Dr Khan prescribed medication together with ongoing psychology and trauma related therapies.

29. Having had regard to all of the material and evidence presented, the Tribunal is satisfied that the review applicant has experienced the relevant family violence, that the perpetrator of such violence was his sponsor and that it occurred whilst the marriage relationship existed between the parties.

30. Therefore the Tribunal is satisfied that the review applicant would have continued to meet the requirements of the subclause at the time of the decision but for those circumstances, hence satisfying the criteria in cl 100.221(4).

31. The Tribunal is therefore satisfied the review applicant meets the criteria of cl 100.221(2).

32. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 visa.

    DECISION

33. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

    ·cl 100.221(2) of Schedule 2 to the Regulations

    Edward Howard
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).