Yesuah (Migration) - [2023] AATA 4624

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Yesuah (Migration) [2023] AATA 4624
Case: [2023] AATA 4624
Decision Date: 18 November 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought by the applicant against the respondent. The central dispute revolved around whether the applicant met the criteria for the visa, specifically concerning the existence of a genuine partner relationship and the occurrence of family violence.

The court was required to determine two primary legal issues: first, whether the applicant met the requirements of cl.820.211(2)(a) of Schedule 2 to the Regulations at the time of application, and second, if so, whether the applicant had suffered family violence. The case involved complex factual circumstances, including initial sponsorship withdrawal, subsequent reconciliation attempts, and allegations of infidelity and family violence.

The court reasoned that the applicant had indeed suffered family violence in the form of emotional, verbal, and psychological abuse committed by the sponsor. Despite the complexities and conflicting statements regarding the relationship's status, the court found that a genuine partner relationship had existed prior to its cessation, and that the applicant had suffered family violence. The court applied the provisions of the Migration Regulations 1994, particularly those relating to non-judicially determined claims of family violence, to reach its conclusion.

Consequently, the Tribunal remitted the application for reconsideration. The court directed that the applicant be taken to meet the criteria under cl.820.211(2)(a) and cl.820.221(3) of Schedule 2 to the Regulations, allowing the Minister to proceed with considering the remaining criteria for the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 KannisMemberATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 19941.21 InterpretationIn 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.

Ratio Decidendi

Legal Principle Established

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 KannisMemberATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 19941.21 InterpretationIn 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.