1319635 (Migration)

[2015] AATA 3588

1319635 (Migration) [2015] AATA 3588 (27 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1319635

MEMBER:Rosa Gagliardi

DATE:27 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 27 October 2015 at 1:51pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] December 2013 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa [in] February 2011 on the basis of her relationship with her [sponsor]. At that time, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.801.221 which requires the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.801.221(6)(b), (c)(i). The applicant claims this occurred in this case.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.801.221 because at the time of its decision [in] December 2013, there appeared to be evidence that the parties were not living together in a genuine and continuing spousal relationship as set out in Regulation 1.15A and that the parties were living separately and apart on a permanent basis.  This conclusion was reached on the basis of several Integrity Site Visits as well as other information.  The issue of family violence was raised during the process of review by the Tribunal after the Department’s decision.

5. The applicant appeared before the Tribunal on initially on 14 January 2015 and 26 October 2015 to give evidence and present arguments. At the hearing held on 14 January 2015 the visa applicant was accompanied by a support person.  At the hearing held on 26 October 2015, [Ms A], the visa applicant’s spiritual support person gave evidence as did her friend, [Ms B].

6. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, the applicant claims the relationship with [the visa sponsor] has ceased, and she has been the victim of family violence.

9. At the first hearing held in January 2015 the Tribunal raised concerns which emerged during the course of the Integrity Site Visits which showed the parties were then not living together.  The Tribunal also advised the applicant that it had been struck by how little the visa applicant and her sponsor had appeared to know about each other.  The Tribunal advised the applicant that on the basis of the material, as put before her at hearing, the Tribunal might find that she had never been in a genuine and continuing spousal relationship and that she had entered the relationship for the sole purpose of gaining a migration outcome. 

10. The decision of Guven v Minister for Immigration & Anor [2006] FMCA 311 (24 March 2006) reviewed a decision of the Tribunal handed down on 6 October 2005 which affirmed a decision under review whereby the applicant claimed family violence. The Tribunal found that the visa applicant was not entitled to the grant of a partner (migrant) (class BC) visa after a consideration and balancing of the evidence available to it and applying the test outlined in Nassouh v Minister for Immigration and Multicultural and Indigenous Affairs(2000) FCA 788.  This was because the Tribunal as it was then constituted was not satisfied that there was any point in time at which the relationship between the visa applicant and the sponsor could properly be regarded as spousal within the meaning of Regulation 1.15A of the Migration Regulations.

11. In the case of the visa applicant before it, the Tribunal as it is currently constituted was prepared after listening to her evidence at the initial hearing to accept her account that her relationship had started off as a genuine and a continuing spousal relationship and the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased.

12. 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.

13. Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in 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).

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?

15. 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.

16. The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes.

17. 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).

18. The visa applicant has submitted a statutory declaration, naming the alleged perpetrator and describing the relevant family violence experienced and when and the frequency of the violence.  The applicant wrote that essentially the family violence started in about July 2011 when she found out her sponsor and husband was having an affair and he threatened to have her sent back to Vietnam.  In addition things became worse when her husband admitted his girlfriend was pregnant and that he wanted his girlfriend and child to move in with them.  He yelled and screamed at her and threatened to send her back to Vietnam if she did not agree to the arrangement.  He forced her to have sex on many nights when she did not want to and was very rough during that sex.

19. A psychologist has provided a statutory declaration dated [in] January 2015 stating that the applicant had suffered family violence at the hands of the perpetrator/sponsor, setting out the information in the appropriate format.  The Tribunal does have reservations about the psychologist’s Declaration, however, in that the applicant only appears to have gone to see [Psychologist C] during the time she was required to prepare her application for review on the basis of family violence.  The Tribunal has little evidence to suggest that at the time the visa applicant claims to have experienced family violence she sought assistance from a medical professional or counsellor to assist her with her difficulties, although the Tribunal accepts that she had approached [Ms A] when she had difficulties in her marriage.

20. Notwithstanding the Tribunal’s concerns about the motivation for the applicant seeking the Statutory Declaration from her psychologist, the Tribunal is satisfied 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?

21. During the hearing in January 2015 the visa applicant seemed to focus on the sense of shame she would experience in returning home because her marriage had failed.  At the hearing held on 26 October 2015, [Ms A], also referred to the cultural difficulties that would be experienced because the visa applicant had lost her virginity and had not been able to make her marriage work.  In addition, the Tribunal identified inconsistencies in the applicant’s testimony and the Tribunal was not clear as to whether the applicant’s overall distress had been derived from her sense of betrayal and loss.  The Tribunal also considered that an Independent Expert should explore more thoroughly with the applicant her claims that she was forced to have sex against her will.  The evidence provided in the hearing in January 2015 did not persuade the Tribunal, together with all the material before it for the purposes of r.1.23, that the applicant has suffered relevant family violence.  Accordingly, the Tribunal was not satisfied that for the purposes of r.1.23 the applicant has suffered family violence.

22. In accordance with that regulation, the Tribunal also sought the opinion of an independent expert. [In] March 2015, the independent expert provided an opinion that the applicant had not suffered relevant family violence.

23. The opinion covers the areas of family violence claimed by the applicant, including constant threats to have her deported back to Vietnam as well as forced sexual intercourse and emotional blackmail.  After having the benefit of the Tribunal hearing as well as the documents supporting the applicant’s case, the independent expert found, among other things:

    I am of the opinion that the cessation of the relationship, if it was genuine, was due to marital discord regarding the unacceptability of an extra-marital relationship, not because of fear or apprehension by [the applicant] for her safety and well-being.  Indeed
    [the applicant] continued to work at the [Sponsor’s] business through the marital discord from July 2011 until she ceased work there in September-October 2014, 7-8 months after the relationship had ceased.

24. The Tribunal put the report in its entirety to the applicant on 23 March 2015 under section 359A of the Migration Act, inviting comment to the information the Tribunal considered would, subject to the applicant’s response, be the reason, or a part of the reason, for affirming the decision under review.

25. On 13 April 2015, the migration agent wrote to the Tribunal seeking an extension of a further 21 days to respond (after the prescribed period) fully to the s.359A letter as the applicant had a friend attend the interview and the friend would assist with confirming the issues that were discussed during the assessment. This request was acceded to.

26. The applicant was also invited to attend a hearing to have been held on 22 April 2015 to enable the applicant to respond to the findings of the independent expert. For legitimate reasons the agent asked to have the hearing re-scheduled for 23 April 2015.  On the day of the hearing the migration agent wrote to the Tribunal (Folio 131, Tribunal file) attaching a further psychologist’s report from [Psychologist C] in support of her claims that she suffered family violence at the hands of her former husband.  The agent considered that there were internal inconsistencies in the report, given that the independent expert had stated that it had been difficult to reach conclusions on the basis of the inconsistencies in the applicant’s account.  The migration agent was also concerned that when the applicant was asked did she fear for her safety and well-being she responded, “No fear, Just wanted to die”, leading the independent expert to find that the applicant did not find her sponsor’s conduct threatening.  The Tribunal considers that it is entirely reasonable to reach a conclusion that the applicant may not have felt fear, but simply wanted to die due to her circumstances and her failed marriage – whether this constituted family violence was entirely a matter for the independent expert to assess.

27. Other issues were also raised.  Given that the applicant had submitted a fresh psychologist’s report, the Tribunal was prepared to give the applicant another opportunity to put forward her case before another independent expert to provide another opinion.

28. [In] July 2015 a different independent expert’s opinion was provided stating that relevant family violence that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own personal wellbeing or safety has not occurred.  The relevant report states, among other things:

    Despite the inconsistencies noted above, what was consistent throughout [the applicant’s] narrative when compared to the previous assessments, is that the problems in the relationship centred around [the sponsor’s] ongoing extra marital affair, that produced a baby in December 2012 (as report by [the applicant]).  [The applicant] described her psychological distress and discontent with [the sponsor] continuing to engage in an affair with the impact the breakdown of the relationship would have on her family in Vietnam.  When asked directly, if [the applicant] experienced fear or apprehension as a result of [the sponsor’s] behaviour she replied “not concerned about my safety” and her psychological distress (anger, shame) she attributed to [the sponsor] disengaging from the relationship, continuing the extra marital affair and the impact divorce would have on her parents, as opposed to specific acts of family violence intended to harm, threaten, demean or humiliate her. Furthermore, [the applicant’s] behaviour, namely leaving [the sponsor] and not accepting his demands ([his girlfriend] and the baby moving in with them, refusing to engage in sexual acts she was uncomfortable) demonstrates an absence of fear and apprehension for her safety and well-being.

29. On 28 July 2015 the Tribunal put the entire report to the applicant pursuant to s.359A of the Migration Act, inviting comment. A hearing was also set down for 25 August 2015. [In] August 2015, the applicant’s migration agent wrote to the Tribunal again questioning the validity of the independent expert’s opinion dated [in] July 2015, arguing that there was no logical connection between the fact that the applicant ultimately left her partner and the conclusion that she never suffered relevant acts of family violence. The Tribunal considers that this comment, however, does not have regard to the entirety of the report which shows that the applicant’s claims were examined thoroughly. The agent also states in his correspondence of [August] 2015, that, among other things, the applicant was denied procedural fairness in that her friend [Ms A] was denied the opportunity of attending the interview by the independent expert and that this resulted in the applicant being more nervous and added to her stress levels, affecting her ability to concentrate and clearly recall some events. It was also claimed that the applicant was not provided with adequate breaks during the interview. The quality of the interpreter was also questioned.

30. The Tribunal was not entirely persuaded that these matters involved the presentation of new information/evidence by the applicant or whether the independent expert’s opinion was legally flawed which would require the Tribunal to have another independent expert look at the matter.  Clearly an applicant may be unhappy with the findings of an independent expert because it does not conform to the outcome wanted by the applicant, but this of itself is not a reason to re refer matters to an independent expert endlessly until the applicant receives a favourable outcome, if ever.

31. The Tribunal weighed up carefully the concerns expressed by the migration agent and decided to again seek another independent expert’s opinion to ensure that the applicant’s concerns were fully addressed and she could have a support person in the room with her as requested.

32. On 21 September 2015 a different independent expert provided an opinion dated

    
    

    [that month], stating that relevant family violence that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own personal wellbeing or safety has not occurred.  The relevant report states, among other things:

    [The applicant] failed to demonstrate that [the sponsor’s] behaviour towards her throughout their relationship caused her to experience reasonable fear and/or apprehension about her wellbeing and/or safety.  Specifically, there is no evidence that [the sponsor’s] alleged financial abuse or threats to withdraw his sponsorship of [the applicant] caused her to experience fear and/or apprehension of her wellbeing and/or safety.

    With respect to [the sponsor’s] alleged sexual abuse of [the applicant] it is noted that although [the applicant] reported that she did not like [the sponsor’s] sexual behaviours at times, including his tendency to be “very rough” during sex, she did not describe it, in and of itself, as causing her to experience fear and/or apprehension about her wellbeing and or/safety.
    …………

    The [Independent Expert] spent considerable time during all three assessment interviews reviewing
    [the applicant’s] accounts of events that she alleged occurred during her relationship with
    [the sponsor], and cross referencing these with [the applicant’s] accounts given to two previous [Independent Experts], a Psychologist, and to the presiding member of the MRT.  It is the [Independent Expert’s] assessment and opinion that a number of inconsistencies and discrepancies in [the applicant’s] self report, raise serious concerns about her credibility and accuracy as a historian and, therefore, cast doubt on [the applicant’s] claims of family violence…

33. The Tribunal sent the report to the applicant under s.359A of the Migration Act on

    
    

    23 September 2015.  In response the Tribunal received a letter from the migration agent dated [in] October 2015, alleging again that the issue of sexual abuse had not been covered off properly by the independent expert.  The migration agent also stated that an inappropriately narrow definition of family violence was applied and that other aspects of the report seemed “disingenuous”. 

34. At a hearing held on 26 October 2015, [Ms A] gave evidence and the visa applicant confirmed that the matters raised with her, being that the intimate aspects of the relationship were not positive and that the applicant was distressed to find her marriage fail due to her husband’s infidelity, were all canvassed with the independent experts.

35. [Ms B], the friend who accompanied the applicant to the interview resulting in the independent expert’s opinion dated [in] September 2015, stated at hearing held on

    
    

    26 October 2015 that she was concerned that the independent expert should have asked the visa applicant how she felt more often.  The Tribunal has reviewed the latest independent expert’s opinion and is unable to discern any evidence that the visa applicant was not asked about each of the matters claimed to have constituted family violence in order to reach a conclusion.

1. The Tribunal is satisfied that the comprehensive and detailed opinion provided on

   
   

   21 September 2015 and dated [in] September 2015,, is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.

2. Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.

3. The Tribunal appreciates that the visa applicant will be disappointed with this decision but the Tribunal considers that having had the opportunity to have her concerns addressed on three occasions, it is bound by the independent expert’s opinion dated [in] September 2015, which has had regard to the evidence before it in its entirety.

4. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.801.221(6)(b) and (c) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa

   Rosa Gagliardi
   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.