Jeptoo (Migration) [2025] ARTA 287 (26 February 2025)

Decision and			
Reasons for Decision 

Applicant:	Ms Naomi Jeptoo
Respondent:	Minister for Immigration and Multicultural Affairs
Tribunal Number:	2113564
Tribunal:	Wan Shum
Place:	Sydney
Date:	26 February 2025
Decision:	The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 26 February 2025 at 11:51am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased and non-judicially determined claim of family violence – delays in notifying department that relationship ceased and seeking counselling – consistent evidence – statement not in form of statutory declaration, and specified documents not provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25, Schedule 2, cl 820.211(2), 820.221(3)(b)(i)		

Statement of reasons
APPLICATION FOR REVIEW
1.  	This is an application for review of a decision made by a delegate of the Minister to refuse to grant a Partner (Temporary) (Class UK) visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act).
2.  	The applicant made a combined application for the Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas on 26 August 2019 based on her relationship with Jerome Law, who was sponsoring her. At that time, Class UK contained Subclass 820 (Partner) and Class BS contained Subclass 801 (Partner). The criteria for the grant of a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), while the criteria for a Subclass 801 are set out in Part 801 of that schedule. For the grant of a Subclass 820 visa, it is a requirement that at the time of application and decision, the visa applicant is the ‘spouse’ or ‘de facto partner’ of the sponsor. Where the relationship has ceased at the time of decision, the visa may only be granted in limited circumstances.
3.  	The visa application was refused on 13 September 2021 because the delegate was not satisfied the applicant was the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen.
4.  	The applicant sought review of that decision and is represented in relation to the review. 
5.  	On 17 October 2024, the Tribunal received a document from the applicant advising that the relationship between herself and Mr Law had ceased and made reference to having experienced domestic violence. If the relationship with the sponsor has ceased because of a claim of family violence, such claims must be accompanied by documentation that meets the requirements of Division 1.5 of the Regulations. 
6.  	The applicant appeared before the Tribunal on 6 January 2025 to give evidence and present arguments. The representative did not attend and did not make any submissions addressing the criteria for the grant of the visa.
7.  	For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
8.  	The applicant is a national of Kenya, born in May 1997. She has declared no previous relationships. The applicant first entered Australia in August 2016 holding a student visa. This visa was due to cease on 30 August 2019. 
9.  	The applicant made a combined application for the Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas on 26 August 2019 based on her relationship with Jerome Law, and was sponsored by him (the sponsoring partner). He was born in Australia in March 1996 and is an Australian citizen. Neither party has declared any previous relationships.
10.  	The visa application and sponsorship forms were completed indicating that the applicant and the sponsoring partner (the parties) first met in August 2017 in Sydney and that they committed to a shared life to the exclusion of all others on 1 January 2019. 
11.  	In the section of the forms seeking details about the relationship, under the question seeking details of the development of the relationship between the parties, the following information was provided: that the parties first met each other through a mutual friend at a night club in Oxford St Sydney in August 2017. The parties next met in October 2017 when they went out with a group of friends and spent most of the night chatting with each other and then exchanged numbers and started going out together. It was claimed that the parties started dating openly in January 2018 but there was tension from people from each of their “sides” who were not happy with their different cultures. But the parties announced their intention to marry in January 2019 and then married in May 2019. 
12.  	A marriage certificate was provided which confirms that they married on 19 May 2019 and that the marriage was then registered with Registry of the NSW Births, Deaths and Marriages on 27 June 2019.  
13.  	Other details requested on the visa application form about financial, social, household and nature of the commitment were completed as follows:
Give details of the financial aspects of the relationship.
My husband and I work out our bills together so that we can make sure that they are all paid first. What ever we have left we use for our personal spending. When we go out together or buy odd things for our home or each other we are not usually strict about who pays. We share what ever money we have. we are both not very good at saving but we have been talking about saving for our future and trying as much as we can.
Give details of the nature of the household.
At home we both help each other with the cooking and cleaning. When ever we need a big shopping we go together otherwise if it is something basic then who ever has time will pick it up.
Give details of the social aspects of the relationship.
We met through my friend so we have some common friends. we have also our other friends to each other. We sometimes go to bars or night clubs with our friend or sometimes visit each other. Many times we just like to go walking just together.
Give details of the nature of the commitment the applicant and the sponsor have to each other.
Jerome and I became very close friends as well as falling in love with each other. Jerome has opened up a lot to me about his younger years and I feel really close to him because of that. He has also been really great to me. He knows how hard it is for me without my family and he is for ever trying to make me laugh. We both love each other but we also feel that we have a really deep supporting emotional connection too.
14.  	Aside from the visa application and sponsorship forms, the only other documents that were provided relevant to whether the parties were in a spousal relationship were the marriage certificate and two Form 888s completed by persons claiming to be friends of the applicant and the sponsor. Despite a number of requests for further information, nothing further was provided and the visa application was refused on 13 September 2021 because the delegate was not satisfied on the available evidence that the applicant was the spouse or de facto partner of the sponsor at the time of application. 
15.  	No information was provided to the Tribunal when the application was made to support the application and, on 5 August 2024, the applicant was invited to provide updated information regarding her relationship. No response was received to this letter, but on 6 September 2024, a request for a Medicare letter was received from her representative. An email was sent to the representative requesting separate contact details for the applicant which were provided on 17 October 2024, along with a typed statement from the applicant stating that she and Mr Law were no longer married, briefly setting out the history of her relationship with the sponsoring partner and her claims of experiencing family violence committed by the sponsoring partner. In respect of the latter, she outlined that she left the house, but it was not entirely clear when this happened, although refers to the relationship ending towards the end of 2021 and noting that the applicant claims that (errors and punctuation from original):
in june 2022 i then found a counsellor caroline at cumberland women's health center who had received one of my referrals  from online   and asked to reach out if i was interested ,i reached out to caroline and said 'am really interested in counselling i recently underwent domestic violence and has been affecting my mental health feeling depression and anxiety so i thought i was strong but having troubles sleeping most of the days and even doing what i love even though have left the relationship i just need counselling to get myself back to normal that's why i have reached out    ,since then caroline started booking me in for sessions on thursdays once a week where it was a safe space to tell caroline what was happening and she was very helpful to try and get be back on truck which it wasn't easy at the start of the sessions but got better as days went by i continued seeking help from the counsellor from june to end of november when she advised she was leaving  the service end of the year and she recommended to try and do a referral for me to join another group which i later got referred to western sydney local health district ,IVPRS domestic service who they called and informed they were not many space available at the time for me to join as covid was happening and a lot was  not getting done at that time in jan 2023 i got my first session at grevillea cottage and continued to april before i could not get anymore service but at this stage i was a bit better as a lot had been spoken about and feeling lots better and started getting  back to my normal routine slowly
16.  	Following the hearing, the applicant provided a printout of the notes made by Caroline Hadfield, Counsellor at Cumberland Women’s Health Centre, of the 6 therapy sessions in July to November 2022 with the applicant.
CONSIDERATION OF CLAIMS AND EVIDENCE
17.  	In the present case, the applicant claims the relationship with the sponsoring partner has ceased, and she has been the victim of family violence committed by the sponsoring partner. 
18.  	As noted above, the visa was refused because the delegate was not satisfied that they were spouses at the time of the application. In this case, it was not until a request was made for the applicant’s own contact details in October 2024 that it was claimed that the relationship between the applicant and sponsoring partner had ceased in July 2021, prior to the decision being made by the delegate. She did not advise the Department that the relationship had ended and did not seek any assistance until June 2022 about the domestic violence she experienced. 
19.  	In these circumstances, the Tribunal requested additional information regarding the relationship prior to the hearing and also provided information about the kinds of evidence that was required after the breakdown of a spousal relationship if they had suffered domestic/family violence committed by their sponsoring partner. 
20.  	The family violence provisions are contained in Division 1.5 of the Regulations which includes regs 1.21 to 1.27. Under reg 1.23 of the Regulations, a person is taken to have experienced 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 experienced relevant family violence or an opinion of an independent expert has been given that the alleged victim has experienced relevant family violence. Relevant family violence is defined in reg 1.21. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14). 
21.  	This means that, in the circumstances of this case, it is necessary to assess whether there was a spousal relationship prior to the alleged family violence.
Was there a spousal relationship prior to the alleged family violence? 
22.  	In considering whether there was a spousal relationship prior to the alleged family violence the Tribunal notes that, despite several requests for further information regarding the relationship when the matter was being processed by the Department, no further information was submitted. The delegate considered the evidence and, while satisfied that the parties were married, was not satisfied that, at the time of application, the other aspects of the definition of ‘spouse’ in section 5F of the Act were demonstrated and concluded that the applicant was not the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Act.
23.  	On review, no additional information was provided. The applicant was invited to provide information in August 2024, but no response was received. It was not until 17 October 2024 that the Tribunal received a statement from the applicant in which she advised that they were no longer married, indicating that it had ended “towards the end of 2021”. In her typed statement, she states that she got married to the sponsoring partner on 19 May 2019, referring to him as “the love of her life”, and claimed that they had “a very happy family in the beginning”. She referred to the sponsoring partner being a drug addict when the parties first met but said that she had helped him stop. The applicant then referred to various incidents commencing in around April 2020 and ending with her “run[ning] away and stayed out for the night… few weeks then moved out of the house and went to my friends and [the applicant] had to stay there for few months as they could not let [her] stay there anymore as it was getting very toxic [in] the August [the applicant] started getting help from the counseling team as [her] mental health was being deteriorated” [sic]. She then goes on to state that  “[their] marriage was good at the beginning and towards the end on 2021 [she] experience challenges that included domestic violence and with several times of trying to work things around ,with no hope of change ,[she] decided to move on with life and as [she] was struggling with [her] mental status as [she] was keeping things to myself and did not share much what was happening later [she] was getting impacted in my wok life and normal day to day life ,that is when [she] decided to seek help which was easy speaking to someone about it ,so [she] decided to google options around me and made inquiries”.
24.  	During the hearing, the applicant gave evidence about her relationship with Mr Law and the way in which it ended. In summary, the applicant’s evidence is that they had met through a mutual friend, Nicole, whose brother used to “hang out” with Mr Law. She said that their marriage was good at the start, despite their families having reservations about their relationship because of their different cultures, but after she explained to her parents that it was real and they stood strong for each other, her family were happy for them to get married. She claimed that they had lived together in Cabramatta for about a year but did not have any formal documents as they were renting from a private landlord, who she said was named Julia. The rent was $350 per week and included electricity and water and was paid from her bank account but claimed that they had shared expenses; the sponsor would give her money he earnt from his work in construction for which he was paid cash-in-hand. When they were living together, she would do more of the household chores such as the cooking, but he would do the dishes most of the time. The applicant said that they then moved to another place together in June 2020. She referred to a change in his behaviour and the threats and violence so she went to her friend Faith’s house. She returned to their home but then on 3 July 2021 she left their house as she did not feel safe. She said that they had married in front of a small group of people which included two of the sponsoring partner’s cousins, a cousin of the applicant and a couple of friends. They would socialise with a group of friends, not very often, but would go out to clubs in Albion and Parramatta or the city. There were some family gatherings with the sponsoring partner’s father.
25.  	When asked why she married the sponsoring partner, she claimed that she thought they were soulmates, they connected at the time, and they had wanted to start a family together. She denied that the student visa ceasing a few months after their marriage was any part of the reason for getting married. 
26.  	While the evidence before it is limited, the Tribunal considered that the applicant gave her evidence at the hearing in an open and honest manner and has given a consistent account of her relationship throughout the visa process. Her evidence on how it ended and seeking counselling is supported by the notes she has managed to obtain from her counselling sessions. 
27.  	Having considered the evidence presented, the Tribunal accepts that the parties were in a spousal relationship from their marriage until July 2021. It therefore finds that, at the time of application, the applicant was the spouse of an Australian citizen who sponsored her for the visa and that the applicant meets the requirements of cl 820.211(2) and therefore satisfies cl 820.211.
Has a claim of family violence been made under the regulations?
28.  	In the present case the applicant is seeking to establish family violence based on a non-judicially determined claim of family violence and she has not provided evidence of a judicial claim of family violence.
29.  	Under reg 1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with reg 1.24 is provided.
30.  	The applicant in this case has not provided evidence of a joint undertaking to a court so needs to provide the evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes (see LIN 23/026).
31.  	A statutory declaration under reg 1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).
32.  	The applicant has provided a typed statement outlining her experience, but it is not in the form of a statutory declaration, so it does not meet the requirements of reg 1.25. 
33.  	Despite being given time to provide the necessary documents to the Tribunal for a non-judicial claim of family violence, the applicant has not submitted documents that meet the requirements of the Regulations. The applicant was provided with a document outlining the types of evidence that is necessary prior to the hearing and the Tribunal explained at the hearing that the information before it did not meet the requirements set out in the Regulations and allowed further time to provide evidence after the hearing. However, no information was provided by the time allowed of 5 weeks. An officer of the Tribunal wrote to the applicant regarding this and allowed a further opportunity to provide the necessary evidence after the applicant indicated that her representative had been unable to “send them”. The Tribunal received an email from the applicant with evidence of ‘ therapy sessions’ which reflect that the applicant sought counselling in June 2022 and attended her first session in July 2022 and attended her last session in November 2022 and her file was closed. However, having considered the information contained in the records of the 6 sessions she attended, these records do not meet the requirements of the legislative instrument as the notes are not on professional letterhead, and do not include the necessary details nor does it include a statement that, in the counsellor’s professional opinion, the applicant’s claims are consistent with her having been subject to family violence. 
34.  	The applicant was advised that the material provided did not meet the evidentiary requirements and asked if she had an intention to obtain the necessary documents required under the legislation. In response, she provided photographs taken from the day of her marriage to Mr Law and some other photographs depicting them together with others. While the applicant has given evidence that she was threatened by Mr Law and felt very scared and did not feel safe, despite multiple requests to provide evidence that met the evidentiary requirements set out in the Regulations and LIN 23/026, the applicant has not done so. The Tribunal is not satisfied that the evidence of a non-judicial claim of family violence has been provided to date. Nor has there been any indication to the Tribunal that the applicant was seeking to obtain such documents for her claims. 
35.  	Given the above, the application for a visa does not include a non-judicially determined claim of family violence as the applicant has not provided the evidence required under reg 1.24. Nor is there evidence of a Court injunction under the Family Law Act 1975, or any Court order against the alleged perpetrator for the protection of the alleged victim from violence or a conviction from the Court and there is no evidence that meets the requirements of reg 1.23(8). 
36.  	This means that she does not satisfy cl 820.221(3)(b)(i). She does not claim that the relationship has ended because of the death of the sponsor and does not claim that she and the sponsor have a child that each party has obligations relating to custody or joint custody or access to or a residence or contact order. There is no evidence that she meets cl 820.221(2) or cl 820.221(3)(b)(ii). Therefore, she does not satisfy cl 820.221.
37.  	For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
decision
38.  	The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Dates of hearing(s):	6 January 2025
Representative for the Applicant:	Mr Hisham Abdelmalek