Yesuah (Migration)

Yesuah (Migration) [2023] AATA 4624 (18 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr James Joyi Yesuah
REPRESENTATIVE:  Mr Ken Chong
CASE NUMBER:  2119616
HOME AFFAIRS REFERENCE(S):          BCC2019/1248294
MEMBER:Christine Kannis
DATE:18 November 2023
PLACE OF DECISION:  Perth
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)(a) of Schedule 2 to the Regulations
·cl 820.221(3) of Schedule 2 to the Regulations

Statement made on 18 November 2023 at 8:13am
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – validly married –– relationship had ceased – parties provided companionship and emotional support to each other prior to the cessation of the relationship – a genuine partner relationship did exist between the applicant and sponsor –the subject of family violence – applicant has suffered family violence in the form of emotional, verbal and psychological abuse committed by the sponsor – decision under review remitted
LEGISLATION
Migration Act 1958, ss, 5F, 65, 359, 376
Migration Regulations 1994, rr 1.09, 1.15, 1.21, 1.22, 1.23, 1.25, Schedule 2, cls 820.211, 820.221
CASES
Guven v MIMIA [2006] FMCA 311

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 15 December 2021 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 March 2019 on the basis of his relationship with his sponsor, Ms Redemtor Mueni Ruto. 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). The primary criteria include cl.820.211 and 820.221 which require that, at the time of application and time of decision, the applicant is the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant has suffered family violence committed by the sponsor: cl.820.221(3). The applicant claims this occurred in this case.
The visa was refused because the delegate was not satisfied the applicant was the spouse or de facto partner of the sponsor and therefore he did not meet cl.820.211(2)(a). Having made this decision, the delegate did not consider the applicant’s family violence claim.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal on 6 November 2023 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether at the time of application the applicant met cl.820.211(2)(a) and if so, whether he has suffered family violence.
Background
On 15 February 2021, the Department received an email from the sponsor advising she was withdrawing her sponsorship for subclass 309/100 visa applications. She stated:
This is due to the change of relationship.
My husband moved out of our house 7 months ago and has been unfaithful three months after we got married until today.
On 19 February 2021, the sponsor revoked the withdrawal.
On 14 April 2021, the Department received statutory declarations made by the applicant and the sponsor stating their relationship was ongoing and had never ceased.
On 29 July 2021, the sponsor advised the Department:
Am writing this letter to your office to let you know that I am unable to submit form 40 (sponsor partner to migrate to Australia) as requested by your office for the applicant named above.
Our marriage and relationship does not meet the minimum standard requirement outlined on the letter.
I married my husband believing that my marriage was genuine and long lasting but I have evidence that suggest otherwise. He has been unfaithful for a long time and in a relationship with another woman and also moved out of our house to his smaller house. He has a different address and only uses our home address occasionally. The applicant has been living on a different address for one year not counting numerous months that he was in and out of home before he finally moved out.
I therefore withdraw my sponsorship of the above-mentioned application.
On 30 July 2021, the Department invited the applicant to comment on the information regarding the breakdown of the relationship.
On 18 August 2021, the applicant’s representative advised the Department that the applicant had suffered family violence and wished to seek residence under the family violence provisions of the Act.
On 23 August 2021, the sponsor advised the Department of her intention to continue to support the applicant’s Partner visa application.
On 30 August 2021, the Department requested statements detailing the circumstances of the reconciliation from the applicant and the sponsor.
On 10 September 2021, the sponsor submitted statutory declarations signed by both the applicant and the sponsor, stating that they had reconciled.
In response to the Tribunal asking the applicant about the sponsor’s claims he was unfaithful and that he was not living with her in their home, he said they were not true. He said their relationship finally ended on 29 July 2021 and when he provided a statutory declaration in September 2021 declaring that they had reconciled, he did not mean that they had reconciled as husband and wife but thought they may be able to salvage the relationship. In a statutory declaration dated 14 November 2023 the applicant provided similar evidence in this regard.
On 5 November 2021, the applicant’s representative submitted evidence including a statutory declaration made by the applicant and a psychologist’s report in which it was claimed that the relationship had broken down due to family violence.
There are specific circumstances in which an applicant will be eligible for a Subclass 820 visa notwithstanding that the relationship between the applicant and the sponsoring partner has ceased and they include those set out in cl.820.221(3).

Relevantly cl.820.221(3) says:
An applicant meets the requirements of this subclause if:
(a)the applicant would meet the requirements of subclause 820.211(2) (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b)        either or both of the following circumstances applies:
(i) either or both of the following:
(A)   the applicant;
(B)   a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;

The provisions of cl.820.221 indicate that a genuine partner relationship within the meaning of the Act must have existed before the relationship ceased and the applicant would have otherwise met the criteria in subclauses 820.211(2) (5) or (6). This means that, while the claims of family violence do not have to cause the cessation of the relationship, the relationship which has ceased must have been one which would otherwise have met the requirements of the relevant legislation.
This approach was approved in the case of Guven v MIMIA [2006] FMCA 311 at [22]-[26] where Hartnett FM found that when considering the grant of a Subclass 100 Spouse (Residence) visa it was open to the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a spousal relationship within the meaning of the Regulations and only where it found that such a spousal relationship existed, was it required to make a further finding in relation to claims of domestic violence (as it was then referred to).
The Tribunal explained to the applicant that it must be satisfied that a genuine spousal relationship existed prior to the claimed family violence and that if satisfied, it would consider the family violence claim. Therefore, before assessing whether the applicant has suffered relevant family violence, the Tribunal must assess whether at any point of time the applicant and the sponsoring partner were in a spousal relationship within the meaning of the Regulations.
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 husband and wife 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 as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the household and the persons’ commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.
Existence of a spousal relationship
A Marriage Certificate issued by the Registrar of Births, Deaths and Marriages (WA) showing the parties were married on 5 February 2019 was provided. On this basis the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s.5F (2)(a).
The Tribunal considered the r.1.15A(3) factors.
Financial aspects of the relationship
The Tribunal has taken into account the evidence provided as to the financial aspects of the relationship including any joint ownership of major assets, any joint liabilities, the extent of pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and any sharing of day-to-day household expenses.
In a statutory declaration dated 7 September 2023, the applicant provided the following evidence in relation to the financial aspects of the relationship at the time of application:
·Westpac Choice statements for the period 26 November 2018 to 26 November 2019 for an account in the parties’ joint names. The credit transactions include deposits made by the applicant and the sponsor. The debit transactions include payment for groceries, fast food and parking.
·He usually paid for rent, electricity bills, gas bills, internet service bills, car insurance and repairs. The sponsor paid for food, waterbills and other day to day purchases.
An email dated 7 July 2020 from the applicant to Powerware Sacco Ltd in which he requests that all his accrued shares and interests amounting to Ksh 236,000.00 be moved to his wife (the sponsor) was provided.
The applicant confirmed at the hearing that he and the sponsor shared household expenses and pooled financial resources prior to the cessation of the relationship.
The applicant confirmed at hearing that he and the sponsor did not jointly own real estate and did not have any joint liabilities and the Tribunal so finds. Despite the limited evidence, the Tribunal finds that prior to the cessation of their relationship, the applicant and the sponsor pooled their financial resources or shared day-to-day household expenses and that this is indicative of a genuine and continuing spousal relationship.
Nature of the household
The Tribunal has taken into account the evidence as to the nature of the household including the parties’ living arrangements and any sharing of the responsibility for housework.
In a statutory declaration dated 7 September 2023, the applicant provided the following information:
·Prior to the cessation of their relationship, he and the sponsor lived as husband and wife with the sponsor’s 4 children, They both looked after the children. He and the sponsor shared household chores. They took turns cooking. He did the lawnmowing and his own ironing. They shared cleaning the house and cars.
·He and the sponsor lived at the following addresses:
oMarch 2017 – February 2018: Ibera Way, Success WA
oMarch 2018 – February 2019: Ricket Street, Haynes WA
oMarch 2019- February 2020: Plunkett Turn Canning Vale WA
oMarch 2020-July 2021: Wright Road, Harrisdale WA
·He lived at Grose Avenue, Cannington WA from July 2021 to December 2022. He initially signed the lease for this unit at the start of 2021 when the sponsor and he were experiencing trouble in their relationship. He stayed at the unit for a short period when he was not sure if their relationship would continue. He signed a 12 month lease so even when they reconciled and he returned to the family home, he decided to keep the unit. He lived there after he and the sponsor separated.
A Residential Tenancy Agreement indicating that the applicant and the sponsor were tenants of a property at Wright Road Harrisdale WA was provided. The term of the tenancy was from 13 April 2020 to 12 April 2021. The maximum number of occupants was stated to be two at any one time.
The evidence before the Tribunal included a bundle of correspondence dated in 2019, 2020 and 2021 addressed to the applicant and sponsor regarding rental accommodation at Plunkett Turn Canning Vale WA and Wright Road, Harrisdale WA and emails regarding construction of a new house.
A Rent inspection report dated 13 May 2019 addressed to the applicant and the sponsor for premises at Plunkett Turn Canning Vale WA and documents dated February/March 2020 evidencing termination of the tenancy of this property were provided.
The Tribunal asked the applicant about the Residential Tenancy Agreement for Wright Road Harrisdale WA which indicated that no more than 2 persons may ordinarily occupy the premises at any one time. In response he said he understood the Agreement to mean that only 2 adults could occupy the premises at any one time and repeated this evidence in a statutory declaration dated 14 November 2023. He said in 2021 the sponsor’s children were aged 19,17,13 and 11. The Tribunal makes no adverse finding in this regard.
The Tribunal asked the applicant about the lease he signed for Grose Avenue, Cannington WA. In response he said he secured the premises after the sponsor’s ex-husband contacted him and told him the sponsor had been staying at his home overnight when she claimed to be at work. He said prior to signing the lease he lived with the sponsor and her children.
Despite the limited evidence, the Tribunal finds that the applicant and the sponsor lived together at Plunkett Turn Canning Vale WA and Wright Road, Harrisdale WA prior to the cessation of their relationship. The Tribunal notes the applicant’s evidence that he and the sponsor shared household tasks however given the minimal evidence, makes no findings in this regard.
Social aspects of the relationship
The Tribunal has considered the evidence provided as to whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.
In a statutory declaration dated 7 September 2023, the applicant provided the following evidence in relation to the social aspects of the relationship:
·Photos of their wedding day with friends and relatives.
·Photos of the applicant and the sponsor indicated to be taken on the sponsor’s birthday in 2017 at Perth Casino, attending a dinner for Kenyans in December 2020, at a Tanzania independence day event (undated) and with their children at Jewel Cave, Margaret River (undated).
·A Change of Name Certificate dated 18 July 2019 issued by the Registrar Births Deaths and Marriages (WA) showing the sponsor changed her name to Redemtor Mueni Yesuah.
·An email dated 7 August 2019 to the sponsor from BFS Leasing Client Management advising a change of name was attached as per her request.
·Evidence that the sponsor’s registration as a nurse for the period from 31 May 2019 to 1 June 2020 in the name of Mrs Redemtor Mueni Yesuah was provided. Her Passport valid to 4 April 2024, her Medicare card valid to 01/2025 and her Driver’s Licence valid to 17 March 2022 in this name were also provided.
·Social media posts of the applicant and the sponsor which have been ‘liked’ by friends dated September 2020 and February 2021.
·An undated Centrelink Family Details form which was claimed to be the sponsor’s form and which shows the applicant is recorded as her partner.
A statutory declaration dated 25 July 2021 made by Ms Judith Khavai Egala, a mutual church acquaintance of the parties was provided. Ms Egala stated that she had known the parties for 5 years and they had interacted at church and community functions. Her reasons for her belief that the parties’ relationship is genuine and continuing included that she has never had any reason to think their relationship is not genuine. Given the general nature of the basis of Ms Egala’s belief, the Tribunal accords this evidence minimal weight.
An affidavit dated 28 December 2021 made by the sponsor’s godmother’s, Ms Sicily Wanjiku Mbogo, was provided in which she stated that she witnessed the parties’ wedding. She did not state any belief regarding the genuineness of the relationship and therefore the Tribunal accords this evidence minimal weight.
An affidavit dated 29 December 2021 made by the sponsor’s sister, Ms Everlyn Ngendo Mutuko, was provided in which she stated that she witnessed the parties’ wedding. She did not state any belief regarding the genuineness of the relationship. and therefore the Tribunal accords this evidence minimal weight.
An affidavit dated 30 December 2021 made by the applicant’s mother, Ms Jescah Y. Ogendo, was provided in which she stated that she witnessed the parties’ wedding. She did not state any belief regarding the genuineness of the relationship and therefore the Tribunal accords this evidence minimal weight
An affidavit dated 30 December 2021 made by the applicant’s sister, Ms Asnath Jerusha Mukwambo, was provided in which she stated that she witnessed the parties’ wedding. She did not state any belief regarding the genuineness of the relationship and therefore the Tribunal accords this evidence minimal weight
In a witness statement dated 6 September 2023, Mr Macdonald Egala said he met the applicant 10 years ago. He said the parties lived together as wife and husband and as family friends they visited each other. He said he attended their pre-wedding ceremony in Australia. He said they attended church services and Kenyan Community Events in Australia together. He said the parties were in a genuine relationship because he could tell they really enjoyed each other’s presence and it was a positive relationship, tight-knit, caring, supportive, friendly and healthy. The Tribunal noted that this evidence was not provided by statutory declaration and was not sworn evidence. Accordingly the Tribunal accords it no weight.
Following the hearing Mr Egala provided a statutory declaration dated 13 November 2023 in which he provided cogent reasons for his belief that the applicant and the sponsor were in a genuine relationship prior to its cessation. The Tribunal gives this evidence some weight.
In an undated witness statement, Mr Vincent Okumu said he had been the applicant’s friend for 7 years. He said he visited the parties at their home for dinner often and also attended social events within the Kenyan community. He said he believed the parties’ relationship was genuine because they presented as close. He said when he visited them he heard the sponsor talking to the applicant’s family and the applicant talking to the sponsor’s family. Mr Okumu said when the applicant first mentioned that things were not going well in the relationship he encouraged him to try and sort things out. He said the applicant eventually moved out of their home and stayed at his place. He said the sponsor asked him to help the situation and he invited her to his place to discuss things with the applicant and he moved back to their home. The Tribunal noted that this evidence was not provided by statutory declaration and not sworn evidence. Accordingly the Tribunal accords it no weight.

Following the hearing Mr Okumu provided a statutory declaration dated 13 November 2023 in which he provided cogent reasons for his belief that the applicant and the sponsor were in a genuine relationship prior to its cessation. The Tribunal gives this evidence some weight.
Following the hearing the Tribunal was provided with the applicant’s Individual Taxation Return for the 2019/20 financial year indicating that the applicant declared the sponsor as his spouse in the relevant financial year. The Tribunal gives this evidence some weight. Evidence (undated) that the applicant nominated the sponsor as his superannuation policy beneficiary and identified her as his wife was also provided. The Tribunal gives this evidence some weight.
The Tribunal accepts that the applicant and the sponsor enjoyed social occasions together and with other people. There was no evidence before the Tribunal that the parties’ families believed the parties’ relationship was genuine. The Tribunal accepts that parties’ families were aware of the relationship. The Tribunal places some weight on this evidence and notes that there is documentary evidence which demonstrates that the parties represented themselves to be married to each other to government departments.
The nature of the persons’ commitment to each other
The Tribunal has considered the evidence provided in relation to the nature of the persons’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long term.
In a statutory declaration dated 7 September 2023, the applicant provided the following evidence in relation to the nature of commitment to each other:
·He and the sponsor met in February 2016 and married on 5 February 2019. They married in Kenya because it was important that their parents attend. Their brothers. sisters, cousins, uncles, aunts and in-laws from both sides also attended.
·He and the sponsor experienced many ups and downs in their relationship in 2021. On 15 February 2021, the sponsor withdrew her sponsorship. By 19 February 2021 they reconciled and she revoked withdrawal of her sponsorship.
·On 1 April 2021, the Department requested statutory declarations from them describing their reconciliation. The sponsor provided a statutory declaration dated 14 April 2021 in which she declared that she continued to support him.
·On 27 July 2021, he and the sponsor had an argument at his unit at Grose Avenue, Cannington WA. On 28 July 2021, the sponsor advised the Department that the relationship had ceased.
·After the argument on 27 July 2021, he and the sponsor maintained some contact. It was difficult to let go of the relationship after 5 years. On 23 August 2021, the sponsor advised the Department that she would continue to support his Partner visa application.
·On 10 September 2021, the sponsor submitted statutory declarations signed by them stating that they had reconciled. The sponsor called him a few days before and told him that she was fearful that he would leave her as soon as his visa was granted which caused paranoia and caused her to act strangely toward him.
·He feels like the sponsor turned their marriage on and off. Even though they had separated and he did not want to get back together, he decided to sign a statutory declaration stating that they had reconciled. This was incorrect and he regrets doing this.
The Tribunal asked the applicant to describe the companionship and emotional support he and the sponsor provided to each other. He told the Tribunal that prior to the cessation of the relationship they enjoyed each other’s company as husband and wife. He said the sponsor provided emotional support when he needed encouragement because his community work was overwhelming. When asked to explain this the applicant said his work sometimes involved domestic issues or financial issues and these could be challenging. He said he provided similar emotional support to the sponsor.
The Tribunal asked the applicant about the sponsor’s relationship with her ex-husband and in particular the claims that they were having an affair in 2021. In response the applicant told the Tribunal that in 2019 and 2020 he and the sponsor lived happily together as husband and wife. The Tribunal put to the applicant that in a statutory declaration dated 4 November 2021 (see below) he declared that in January 2020 he found out the applicant had asked her children to stalk him, in May 2020 he caught her stalking him and in June 2020 he considered transferring from Perth to the Gold Coast. It also appears he reported the sponsor to the Police in 2020 for secretly recording his conversations with others. In response the applicant told the Tribunal that in 2020 he and the sponsor were generally happy however there were times when her paranoia caused problems in their relationship.
Non-disclosure certificate
Prior to the hearing the Tribunal informed the applicant in writing that a s 376 non-disclosure certificate had been issued by the Department. The Tribunal advised it was satisfied that the certificate was valid and invited the applicant to comment on or make submissions on the validity of the certificate. In response, the applicant’s previous representative advised that the applicant makes no comment regarding the validity of the certificate. At the hearing the Tribunal asked the representative to confirm this advice however he advised that he was not in a position to do so having taken over the conduct of the matter from another lawyer. The Tribunal informed the representative that submissions regarding validity could be made after the hearing. No submissions were received.
The Tribunal decided the certificate contained a valid ground of public interest immunity not to disclose the information: that the document discloses lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
The Tribunal, in accordance with s 359AA of the Act, invited the applicant to comment on or respond to the information protected by the certificate. The information was essentially information contained in the delegate’s decision about the history of the parties’ relationship including the sponsor’s advices of withdrawal of sponsorship and the claimed family violence. The protected information also referred to allegations of a contrived relationship received by the Department in February 2019. The Tribunal put to the applicant allegations that he had been dating different women who had either Permanent Resident or Citizenship with the intention of staying in Australia permanently and that he tricked a woman who he travelled to Kenya with to sponsor him for Partner visa however he was living with a different woman in Willetton. In response the applicant told the Tribunal that the allegations were false. Following the hearing the applicant provided a statutory declaration dated 14 November 2023 which included his response to the allegations which was not materially different from his evidence at the hearing.
The allegations were received from an informant who wished to remain anonymous and therefore the Tribunal was unable to test the reliability of the information. The applicant denied the allegations. Accordingly, the Tribunal gives the information protected by the s 376 certificate no weight.
Conclusion
The evidence before the Tribunal included Westpac statements for an account in the parties’ joint names for period November 2018 to November 2019. The Tribunal accepts that both parties contributed to the funds in the account and that it was used to pay for joint living expenses. On the basis of correspondence addressed to the parties at two residences during the relationship, the Tribunal is satisfied that the evidence of the nature of the household is an indicator of a genuine spousal relationship. Written evidence of friends and photographs were provided to demonstrate the social aspects of the parties’ relationship and based on this evidence, the Tribunal finds that the parties undertook joint social activities and represented themselves to others as being married to each other. The Tribunal is satisfied that the parties provided companionship and emotional support to each other prior to the cessation of the relationship. Based on the evidence the Tribunal finds the applicant and sponsor were in a spousal relationship within the meaning of s.5F(2) prior to the cessation of the relationship.
In a statutory declaration dated 4 November 2021, the applicant claims the relationship with the sponsor ceased on 29 July 2021 and that he was the victim of family violence committed by the sponsor for the following reasons:
·He was subjected to coercive control by the sponsor because she used to remind him that unless he toed the line, she could cancel his visa. In March 2019, she asked him to denounce a friendship and when he refused she became abusive and called the friend and threatened and intimidated them. This was very stressful for him. He feels this behaviour was unfair and controlling.
·In January 2020, he found out that the sponsor requested her children to stalk him and so he moved out to stay with a friend to take a break. In May 2020, he caught the sponsor stalking him when she followed him when he was driving to work and an argument ensued. She then wrote him an email claiming he was unfaithful and threatening to end the relationship.
·Sometime after he learned his phone was tapped, his emails synchronised to the sponsor’s and she was controlling his Facebook page, sending and responding to messages on it and reading and responding to SMS messages on his phone. She said as his wife she had a right to access his communication devices. He then blocked her and she was furious and threatening and branded him a coward.
·In June 2020, he was overwhelmed by the sponsor’s controlling behaviour and he called a friend who told him he could seek a transfer from Perth to the Gold Coast. The sponsor confronted him about this with a recorded audio. He was shocked and she said that he thought he was clever blocking her on other platforms and she had used a pen in his car to record his conversations for 1 year and she was angry because he was planning to run from her. This made him fear even more. He later learned that gadgets were placed strategically in the house to capture voices.
·He went to Cockburn Police station to report her but failed to record a statement because after the Police listened to an audio he provided, they wanted to charge the sponsor. He chose to withdraw his complaint as he feared the implications and did not want the sponsor charged with a criminal offence.
·He has suffered abuse from the sponsor’s ex-husband (Linus). The sponsor maintained regular contact with Linus and invited him to their house without telling him. Linus started harassing him and called him and told him the sponsor was coming to his house and asking for sex. He said they were having an affair and he wanted to end it. He sent a photo of himself and the sponsor at his house.
·On 7 February 2021, Linus sent another photo of himself and the sponsor.
·On 14 February 2021, Linus sent him a photo of the sponsor’s shoes at his house and on 14 March 2021 sent him a message that his marriage visa was cancelled.
·The sponsor said she bought a wall hanging which was in the bedroom they shared however Linus told him he bought it. He asked the sponsor to take it down as it was severely impacting his ego. She refused and the wall hanging in their bedroom traumatised him during the marriage.
·On 16 April 2021, Linus sent him a photo of the sponsor’s clothes in a drawer at his home.
·Linis continued to send him abusive text messages. This was impacting his mental health and he applied for a Restraining Order. He attended a court hearing on 21 October 2021. The magistrate did not grant the Restraining Order.
·He suffered emotional abuse because when he and the sponsor argued, she used vulgar language and made him feel small in front of the children. He would withdraw by walking away or remaining silent.
·The sponsor’s controlling behaviour continued and he had to move out to debrief. He rented a unit in Cannington where he would stay when he was having trouble with the sponsor. He reported the matter to the church pastor who counselled them.
·On 27 July 2021, he stopped at his Cannington unit. He heard someone trying to open the door and the sponsor let herself in. She said as his wife she had a right to enter. He asked her to leave and threatened to call security. They argued and she left. When he returned to his car he saw the spare keys to the unit were missing and security footage shows the sponsor took something from his car. He reported to this to the landlord and the lock was changed.
·In the early hours of 29 July 2021 his mother called him and said the sponsor had called her to badmouth him and had called him useless.
·On 29 July 2021, at 1.31 am, the sponsor sent him an email and asked him to collect his things from the family home.
·On 30 July 2021, he returned to the home and couldn’t use his key to open the front door as the lock had been changed. The back door was open and the sponsor was there. He collected his bags and went to his Cannington unit.
·The relationship was genuine and committed at the beginning but overall it brought him pain, anxiety and trauma. He feels a heavy hand of control and domination has made him weak and he has low self-esteem.
·The sponsor’s repeated withdrawing of her sponsorship and then revoking it clearly demonstrates her bullish behaviour aimed at proving she holds his life in her hands.
·Lack of respect caused the marriage to break. He believes he did his best and did not act to worsen the situation. He remained a responsible husband who tried to make the marriage work. Prior their break-up, they spent their time together with her children and he thought he was building a permanent future with the sponsor and her children.
·Throughout their relationship he was forced to tolerate unethical and disturbing behaviour by two of the sponsor’s children who smoked weed and used a bong in the house. He asked the sponsor to put a stop to it but she said she had chosen to live with it. This behaviour was so intimidating that he stopped confronting the kids for fear of reaction since they said their mum has no problem and it was her house.
·As a result of the sponsor’s controlling and stalking behaviour, he felt anxious, stressed and confused. He has been diagnosed with anxiety by his GP. He has been placed on a Mental Health Treatment Plan which recommended he undergo Cognitive Behaviour Therapy to manage his anxiety. He was referred to a registered psychologist who has been treating him since 15 September 2021. She is helping him understand the impact the relationship has had on his well-being and ability to feel safe moving forward.
Following the hearing the applicant provided a statutory declaration dated 14 November 2023 in which he provided further evidence in relation to matters raised during the hearing. One of these matters was his account of the Restraining Order proceedings he brought against the sponsor’s ex-husband. No documents were provided to substantiate the applicant’s contentions including his contention regarding statements made by the Magistrate. The Tribunal has placed no weight on this evidence.
As noted, the Tribunal is satisfied that a genuine partner relationship did exist between the applicant and sponsor. Further, based on the written and oral evidence, the Tribunal finds the spousal relationship ceased on 29 July 2019. 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.
Under r.1.23, 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 r.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: r.1.23(3), (5), (7), (12), (14).
In the present case the applicant is seeking to 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?
Under r.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 r.1.24 is provided.
The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under r 1.25 and evidence of a type and number specified by the Minister for these purposes (see Migration (Specification of evidentiary requirements—family violence) Instrument (LIN 23/026) 2023). Although LIN 23/026 commenced on 31 March 2023 and repealed the instrument in effect immediately prior to its commencement (IMMI 12/116), it contains a saving provision that anything done under IMM 12/116 continues to be in effect as if it had been done under LIN 23/026.
The Tribunal considered the statutory declarations and medical evidence provided.
Statutory declaration under r.1.25
A statutory declaration under r.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: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).
The Tribunal is satisfied the applicant’s statutory declaration dated 4 November 2021 complies with the specific provisions of r.1.25. The statutory declaration sets out the allegation of family violence and names the sponsoring partner as the alleged perpetrator of the family violence. The Tribunal is satisfied that the applicant’s statutory declaration meets the requirements of r.1.25(2).
Statutory declaration from Registered Psychologist Wendy Meynert
A statutory declaration dated 19 October 2021, made by registered psychologist Ms Wendy Meynert was provided. She said the applicant sought her assistance for treatment of anxiety in relation to his marriage breakdown. Ms Meynert stated that she had seen the applicant on three occasions between 15 September 2021 and 12 October 2021. Ms Meynert said at the applicant’s first appointment she administered a DASS-42, and on the basis of this test, his scores were as follows:
·Depression 22 (21-27 = Severe)
·Anxiety 24 (20+ = Extremely Severe)
·Stress 26 (26-33 = Severe).
Ms Meynert concluded that based on the information provided by the applicant, she was of the opinion that he had been subjected to family violence within the accepted definition, including conduct by his estranged wife, the alleged perpetrator, that made him fear for his safety and wellbeing, and this had included verbal and emotional abuse, controlling behaviour, stalking, ‘technology facilitated abuse’ and forced isolation (by ordering him to leave their home). She stated that the family violence occurred during the course of the applicant’s relationship with his wife. The Tribunal is satisfied that the applicant has provided a statutory declaration made by a registered psychologist in a State or Territory which states that the applicant has made a claim of family violence and in her professional opinion the claims are consistent with the applicant having been the subject of family violence and identifies the sponsor as the perpetrator. The Tribunal finds that this meets the statutory requirements of IMMI 23/026.
Letter from GP and MHTP

A referral letter dated 23 August 2021 from the applicant’s general practitioner to Ms Meynert and a Mental Health Treatment Plan dated 23 August 2021 were provided.
The Mental Health Treatment Plan has been completed by a medical practitioner and identifies the applicant and details the treatment consistent with family violence because it refers to remedies for his mental health problems to include psychoeducation and Cognitive Behaviour Therapy. The Tribunal finds that this meets the statutory requirements of IMMI 23/026.
Statutory declaration from Abas Ng’humbi
A statutory declaration dated 15 November 2021 relating to claimed stalking of the applicant by the sponsor. Mr Ng’humbi stated that in February 2020, he was at home when someone knocked on his door. He said he didn’t open the door. He said it was the applicant’s wife and she walked around the house and checked through the windows to see if someone was in the bedroom. He said he knew the applicant and his wife were not on good terms and she was jealous and tried to follow the applicant wherever he goes (stalking) to see if he’s seeing someone else. Mr Ng’humbi said he was witness to these incidents/moment happening in Rockingham where he used to live. This evidence is not of a type specified in IMMI 23/026 and therefore cannot meet the statutory requirements. This evidence however provides probative evidence of the applicant’s allegations of family violence.
The applicant provided a statutory declaration under r 1.25 and two items of evidence (statutory declaration from Registered Psychologist and a Mental Health Treatment Plan) in support of his claim of having suffered relevant family violence. Therefore, the Tribunal finds that the evidence presented meets the requirements of r 1.24. As such, a non-judicially determined claim of family violence has been made under r 1.23.
Has the applicant suffered family violence?
The Tribunal has considered the applicant’s oral evidence and his detailed statutory declarations about the family violence. The Tribunal has considered the statutory declarations about the family violence from the applicant’s registered psychologist.
The statutory declaration made by Ms Meynert dated 19 October 2021 details the basis for her opinion that the applicant experienced verbal and emotional abuse perpetrated by the sponsor. She said the sponsor’s behaviour caused the applicant to fear for his safety and wellbeing. The applicant told the Tribunal of the fear he experienced as a result of the sponsor’s behaviour and described her verbal abuse and aggressive behaviour. He said she would come close to his face and taunt him by saying she dared him to push her away or hit her. He said at times he felt unsafe because the sponsor had shared his recorded conversations with others and he did not know how they would react. He described having to look over his shoulder as a result of the sponsor’s behaviour.
The applicant told the Tribunal that he was scared that the sponsor would hurt him and at times feared for his life. Given the absence of physical violence, the Tribunal asked him about this. He said the sponsor’s behaviour in infiltrating his privacy by secretly recording him and coming close to his face daring him to assault her caused him to be fearful for his safety.
The applicant told the Tribunal that the sponsor threatened to have his visa cancelled and withdraw her sponsorship. The Tribunal has noted (above) that the sponsor acted on these threats at times and notified the Department accordingly. These actions constitute coercive control and the applicant was left in a state of fear in case his visa was cancelled.
The Tribunal finds that the sponsor’s conduct prior to the cessation of the relationship, including recording of his conversations and sharing those recordings with others, humiliating the applicant in the presence of her children, accusations of infidelity and threatening to withdraw her sponsorship of his Partner visa application caused the applicant to seek psychological assistance because he feared for his emotional and mental wellbeing. The Tribunal finds that the applicant’s fear was reasonable given the range of abusive behaviours by the sponsor.
Having considered all of the evidence before it, the Tribunal is satisfied, for the purposes of r. 1.23, that the applicant has suffered family violence in the form of emotional, verbal and psychological abuse committed by the sponsor that occurred whilst the parties were in the relationship. As such, the applicant is taken to have suffered family violence in the relevant sense: r. 1.22.
Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for r.1.22.
As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl 820.221(3). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
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)(a) of Schedule 2 to the Regulations; and
·cl.820.221(3) of Schedule 2 to the Regulations.
Christine Kannis
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.

[2023] AATA 4624

18 November 2023

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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