1417641 (Migration)

1417641 (Migration) [2015] AATA 3589 (29 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1417641
MEMBER:Mary Cameron
DATE:29 October 2015
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa
Statement made on 29 October 2015 at 11:05am
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2011 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa [in] October 2008 on the basis of his relationship with his [sponsor]. At that time, Class UK contained Subclass 820 and 826. The only subclass in respect of which any claims have been advanced is 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 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.820.211 and 820.221 which require that at the time of application and decision, the applicant 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.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.221 because the relationship between the applicant and the sponsor had ceased and the delegate found that the visa applicant had not suffered family violence.
The applicant applied to the Tribunal for the review of the delegate’s decision on 4 October 2011. The Tribunal (differently constituted) affirmed the delegate’s decision on 20 August 2013. The applicant appealed the Tribunal’s decision to the Federal Circuit Court and the matter was remitted by the Court to the Tribunal for reconsideration according to law.
The applicant appeared before the Tribunal on 3 February 2015 and (after an adjournment of hearing) on 12 February 2015 to give evidence and present arguments. The Tribunal also heard evidence from [Mr A] who is a friend of the visa applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with [the visa sponsor] has ceased, and he has been the victim of family violence.
The Tribunal has considered all of the evidence contained on the Department’s and the Tribunal’s files, and the oral evidence of the applicant at the Tribunal hearing, and is satisfied that the applicant and his sponsor were in a spousal relationship, and that this relationship has ceased. 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 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).
In the present case the applicant is seeking 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 r.1.24(1)(b) – namely, a statutory declaration under r.1.25 together with two statutory declarations under r.1.26 by competent persons who hold different qualifications.
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).
A statutory declaration by a competent person under r.1.26 must: be made by a competent person (as defined in r.1.21(1)); set out the basis of the person’s claim to be a competent person for the purposes of the Regulations; state that in the competent person’s opinion, relevant family violence has been suffered by a person; name the person who in the opinion of the competent person has suffered that relevant family violence; name the person who in the opinion of the competent person committed that relevant family violence; name the person to whom the conduct was directed and their relationship to the alleged victim (if the conduct was not towards the alleged victim) and set out the evidence on which the competent person’s opinion is based.
In the present case the applicant made a statutory declaration pursuant to r.1.25 on 13 August 2010 alleging that he is the victim of relevant family violence. His statutory declaration includes the allegation of family violence and names the person alleged to have committed the relevant family violence. The statutory declaration meets the requirements of r.1.25(2).
The applicant provided three further statutory declarations from [Psychologist B] (dated [in] August 2010), [Psychologist C] (dated [in] August 2010) and [Doctor D] (dated [in] August 2010).
The Tribunal is satisfied that [Psychologist C] is a person registered as a psychologist in Australia.
The Tribunal is satisfied that [Doctor D] is a person registered as a medical practitioner in Australia.
The Tribunal finds that the statutory declarations of [Psychologist C] and [Doctor D] comply with r.1.26(a)-(g) as they:
·were made by a competent person;
·set out the basis of their claim to be a competent person for the purposes of the regulations;
·stated that, in each of their opinions, relevant family violence (within the meaning of r.1.21(1)) has been suffered by a person;
·named the person who, in their opinion has suffered relevant family violence;
·named the person who, in their opinion committed that relevant family violence; and
·set out the evidence on which their opinion is based.
Therefore, two statutory declarations meeting the requirements of r.1.25(2) and 1.26 have been provided.
The Tribunal finds that the declaration from [Psychologist B] does not comply with r.1.26 as it does not state that the relevant family violence has been suffered by the applicant.
The Tribunal is satisfied that evidence of family violence has been presented in accordance with r.1.24(1)(b) and that therefore a non-judicially determined claim of family violence has been made under r.1.23.
Has the applicant suffered family violence?
According to the applicant’s Form 1040 Statutory declaration relating to family violence, the mistreatment he received from the sponsor commenced on [a date in] March 2008. According to his statutory declaration he decided to take his wife [a Melbourne location] where she became very aggressive, swearing and then pushing the applicant. He was very angry and felt his blood pressure was getting high. He told his wife to contact emergency services for help, but she did not believe him. He fainted and had an epileptic fit, and his wife then realised it was serious and called an ambulance which took the applicant to hospital for treatment. He was bleeding from the mouth and nose as a result of the stress of the abuse from his wife.
According to his statutory declaration the applicant was advised by his medical specialist that he should not get upset and that depression is a major trigger for epilepsy, and he cannot understand that his wife was cold enough to leave him fainted on the floor ignoring his call for medical treatment. According to his statutory declaration “the torture continued” and his doctors advised him that he was at risk of having a stroke and he informed his wife to stop the harassment and violence towards him. The psychological abuse occurred and “this was another obvious method to want money”, even when there was only enough to cover bills, all of which were in the applicant’s name. She continued to threaten that she would deport the applicant overseas. The most recent incident was when she threw a vase at him in October 2009, an incident he describes in a submission attached to his statutory declaration.
According to that submission the applicant was introduced to his sponsor by his [cousin]. Their relationship developed and they married [in] 2007. They lived together in [one suburb] for eight months and then in [another suburb]. The sponsor has a [age] year old son and she placed pressure on the applicant to care for him as a father figure. He enjoyed the boy’s company and felt sorry for him because his mother was physically abusive. The applicant had a conflict with the sponsor in April 2009 which led to her being verbally abusive. The applicant had suggested she take her son to hospital as he was ill and she told him not to interfere, which proves an example of her selfishness and laziness.
According to the applicant’s submission he accepted his sponsor’s opinions and choices but felt that she had her own interests in their marriage. They lived together with her son until problems began due to her abusive treatment of her son which the applicant couldn’t accept. Their relationship deteriorated into physical and verbal abuse. In October 2009 the applicant threw a vase at the applicant’s head. He then started visiting a doctor for treatment for depression due to the abuse he was receiving from his sponsor.
According to the applicant’s submission the problems in the relationship started in March 2008 as the sponsor started verbally abusing the applicant on a daily basis. She constantly requested money for own greed and threatened the applicant with ending the marriage if her demands were not met. This included her compelling the applicant to pay for her to travel [overseas] in 2010. Her demands were not reasonable. After her return to Australia in May 2010 her treatment of the applicant was nothing but blackmailing, and verbal and physical abuse. She threatened the applicant that she would withdraw her sponsorship if he did not meet her financial demands. The applicant ignored the matter in order to protect his wife and because he was embarrassed by the treatment he received from her, but considers her a greedy and selfish woman who seeks to please herself. He tried to be a good husband and partner, but his wife would not acknowledge their relationship except by shouting and swearing.
According to the applicant’s submission he is depressed as a result of his sponsor’s mistreatment and attending a psychologist for treatment. He is living in fear and having sleepless nights fearing attack from his sponsor, who has sent him abusive SMS messages. She has also approached him for money, offering to tell the Department that they have reconciled, but he will not agree to her demands. He is afraid of her and wants her to leave him alone with the chance to live a normal life.
At the Tribunal hearing the applicant confirmed that he was born in [year] in Egypt and arrived in Australia as a student in 2006. He told the Tribunal that he met his former [spouse] at the end of 2007 and that they married in late 2008. The Tribunal notes that their Certificate of Marriage is dated [early in] 2008 (Departmental file, f.19). The applicant told the Tribunal that the relationship lasted for two years and eight months, ending in late 2010. They divorced in 2011.
The applicant agreed that he applied for the visa the subject of review [in] October 2008, sponsored by his then [spouse]. He told the Tribunal that he lived with the sponsor and her son, who was about twelve or thirteen at that time. He told the Tribunal that their relationship was good to begin with and their problems began after two years and eight months. He stated that after two years and eight months the sponsor wanted to see her family and the applicant had to support her and give her money. When she returned from visiting her family overseas she started to extort him for money in return for supporting him for a residence visa.
The applicant told the Tribunal that he contacted the Department and told the Department what was happening. A Departmental officer told him that he might fit into the “family violence exception” for the visa grant and so he decided to follow that avenue.
The Tribunal asked the applicant whether his sponsor had been physically violent toward him, and he responded that she either hit him or threw things at him. He stated that she once threw something at his head and hit him on the left eyebrow. The Tribunal asked him what his sponsor threw at him and he stated that it was a ceramic photograph frame. He stated that before this incident they would fight and his sponsor would change the door locks and throw his clothes out. The police attended during one of these incidents and the applicant requested a police report but was told there was no need as no serious injury had occurred.
The Tribunal noted that the sponsor had withdrawn her sponsorship of the applicant on two separate occasions. The applicant stated that during one of their fights he felt he had had enough and decided to leave the relationship and went and stayed with family members for a couple of weeks. His sponsor tried to make him come back, but things did not improve.
The Tribunal asked the applicant why he had not left the relationship and claimed family violence sooner than he had. He stated that he had been a new arrival and didn’t know about the migration regulations. He had realised when the sponsor withdrew her sponsorship for the second time that she was just using him as a source of money, and it was the Department which advised him to take this course of action.
The Tribunal asked the applicant whether he could describe any other incidents of family violence perpetrated against him by the sponsor. He stated that on one occasion he was playing Play Station with the sponsor’s son, when she began swearing at them and waving a knife around. He was scared and held on to her hand. He can’t remember when that incident took place. He told the Tribunal that the sponsor also engaged in frequent verbal abuse, and extortion, although the incident when she threw the picture frame at him was the first time she physically attacked him, though there was a previous incident when she smashed a computer and she also threw a glass at him on another occasion. The applicant stated that she asked him for $25,000.00 and when he refused to give it to her she withdrew her sponsorship for the second time.
The Tribunal asked the applicant whether he had seen a doctor for reason of the physical harm inflicted by his sponsor. He stated that he had not seen a doctor for this reason but had consulted a doctor because of his problems with his wife. He had wanted her to go with him, but she did not. He was prescribed medication for his epilepsy. He told the Tribunal that the sponsor knew that he suffered from epilepsy and should avoid stress, and she deliberately provoked him.
The Tribunal asked the applicant whether he had contacted the police in regard to the family violence perpetrated by the sponsor, and he stated that he had only contacted the police on the one occasion he has described. The Tribunal asked him why he had not contacted the police when the sponsor threatened him and her son with a knife. The applicant responded that she was his wife, and he did not think it would reach the stage where they would hurt each other or need to involve the police.
The Tribunal asked the applicant whether he had moved out of the couple’s shared home when the relationship ended and he stated that he had, and had gone to his cousin’s place. Since then he has moved in with his friend [Mr A] and [Mr A’s] wife. He and his sponsor have divorced.
The Tribunal asked the applicant whether he and his sponsor remain on friendly terms, and he stated that they do not, and that after the separation he was civil to the sponsor only if he saw her. The Tribunal noted that according to his evidence provided to the Tribunal as previously constituted he and the sponsor had remained good friends and were in regular contact. The applicant stated that actually, and only if they see one another, his former wife might ask him for coffee. He stated that his former wife and sponsor knew where he worked, and she would make a point of bumping into him, and they would sometimes have coffee together because the applicant had been on good terms with the sponsor’s son, and he did not want to make things unpleasant for him.
The Tribunal asked the applicant whether he has participated in any ongoing psychological counselling since consulting [Psychologist C] who has provided a report for the purpose of the applicant’s family violence claims.
The applicant responded that because he is on epilepsy medication, many other medications are incompatible so the doctor’s prescribed him only sleeping tablets, and also increased his epilepsy medication. He does not have a Medicare card and cannot afford ongoing treatment. He told the Tribunal that he has been advised to stay away from his former wife and to try not to become stressed.
The Tribunal asked the applicant whether he had been fearful of physical harm from his sponsor. He said he was not afraid all the time, but sometimes he was afraid of what she might do when she was in a bad mood. He would be afraid when he was going to sleep about what she might do. The Tribunal noted that, according to his evidence provided to the Tribunal as previously constituted, he had not been frightened of his sponsor harming him, but was once frightened that his sponsor might harm herself. The applicant responded that the incident when she was waving the knife around he thought she might hit either him or herself. He stated that he did not mention any other incidents because of his lack of English.
The evidence of [Mr A] is that the applicant, who he has known for seven years, had told him that he had experienced family violence perpetrated by the sponsor, and that this had included physical abuse and financial extortion. The witness told the Tribunal that he had been told about the incidents which the applicant had described to the Tribunal, and knew that the applicant had sometimes been fearful of his former wife. The applicant now lives in the home of [Mr A]. The witness told the Tribunal that he and his family hold the applicant in very high regard, and consider him to be honest and trustworthy.

The Tribunal discussed with the applicant the evidence of family violence that he had provided in the course of the review; the opinion of an independent expert [of] June 2012 that he had not suffered relevant family violence; the subsequent findings of the Tribunal as previously constituted that family violence was not established, and the remittal of the previous Tribunal’s decision by the Federal Circuit Court. The Tribunal asked the applicant whether he wished to provide any additional evidence, or whether there was any additional material not before the Tribunal that he would wish to be provided to an independent expert in the event that the Tribunal decided to seek the opinion of an independent expert.
The applicant told the Tribunal that in his marriage he had just wanted an ordinary married life but he had come to realise, after his sponsor had tried to extort $25,000.00 from him, that his sponsor had been in the relationship for money, and he had refused to pay. It was as a result of his refusal to pay this money that the sponsor withdrew her sponsorship.
The applicant stated that he has been before an independent expert before, and they were looking for the infliction of physical harm, but he has suffered other types of harm, and the abuse he experienced caused his epilepsy, as a result of which he had been admitted to hospital in March 2008. He stated that all of the medical reports and other relevant material had previously been provided to the Tribunal.
The Tribunal told the applicant that, in the event that the Tribunal was not satisfied on the evidence before it that the applicant had suffered relevant family violence, the Tribunal would ensure that all relevant material was provided to an independent expert to determine whether he had suffered relevant family violence.
The Tribunal has carefully considered the statutory declarations of [Psychologist C] and [Doctor D].
The report of [Psychologist C] states that the applicant suffers from extreme depression, anxiety and PTSD as a result of the way he was treated by his sponsor, and describes the various instances of the sponsor abusing the applicant. It states that she began to physically hit him in the head and around the upper body and causing a lump on his head as a result of her “bashing” him, and which has been present for more than twelve months. It describes her extorting him in the sum of $23,000.00, and other incidents such as changing the locks on their house; verbal abuse and threats, and using sex to bargain with the applicant. It states that the sponsor’s treatment of the applicant amounted to torture.
While the declaration of [Psychologist C] indicates the writer’s view that the applicant has experienced relevant family violence, the Tribunal finds that the description of relevant events is significantly inconsistent with the applicant’s evidence at hearing, which included his evidence that the only physical injury inflicted by the sponsor was a result of her throwing a picture frame at him.
The Tribunal further notes that the section of [Psychologist C’s] report headed “Mental State Examination” describes a person of female gender throughout, stating variously that “her facial expression was miserable”; “her demeanour communicated misery”’; “she wept intermittently” but made an effort “to pull herself together” together, with many other references to a female person. The Tribunal considers that this apparent inclusion of diagnostic references to a different person than the applicant raises some concerns about the accuracy of the report.
The report of [Doctor D] states that the applicant suffers from epilepsy and that he was subjected to mental and physical abuse during his marriage. The declaration records one incident in which he was hit on the head with a vase, leaving a scar, and that he had reported that his sponsor is of poor character and tried to blackmail him, and took loans from lending institutions in various names. The statement of [Doctor D] is that he has viewed and studied the reports of [Psychologist C] and medical records from the [relevant hospital], and believes that the applicant has suffered significant domestic violence.
The Tribunal notes that [Doctor D’s] statement appears to accept the content of [Psychologist C’s] psychological report. It is brief, and adds little to the report of [Psychologist C].
The Tribunal has also considered the submission of [Psychologist B] which states that the applicant is suffering from adjustment disorder mixed with major depression and anxiety, and it is the writer’s opinion that he was subject to abuse by his wife as he was exposed to her sadistic behaviour by which she tried to enslave him by abusing her ability to cancel his visa.
Having considered the evidence before it as a whole the Tribunal was not satisfied that the applicant had suffered relevant family violence for the purposes of r.1.23. The applicant’s evidence regarding incidents of family violence perpetrated by his sponsor was vague and internally contradictory. His evidence at the Tribunal hearing was not consistent with his written statement regarding when the problems in his marriage first arose, and in regard to his wife throwing an object at him in October 2009. That object was stated in his written submission to be a vase, but according to his evidence at hearing she had thrown a ceramic picture frame at him, and at another time had thrown a glass at him. The Tribunal also considers aspects of his evidence to be implausible, including his evidence regarding his continuing to meet the sponsor for coffee so that things would not be unpleasant for her son, despite his characterisation of their past relationship being nothing but verbal and physical abuse and blackmail.
Given the Tribunal’s concerns regarding the applicant’s claims, and in accordance with the Regulations the Tribunal sought the opinion of an independent expert. In so doing the Tribunal provided the independent expert with all relevant documents including the applicant’s statutory declaration relating to family violence; and the the statutory declarations and associated reports of [Psychologist C], [Doctor D] and [Psychologist B] which are set out above. The Tribunal also provided the independent expert with documents identified in the orders of the Federal Circuit Court [in] October 2014 as relevant material for the purposes of the independent expert opinion. These were text message from the sponsor to the applicant in 2010 which the applicant alleged were abusive and threatening; tax invoices from [a medical] Clinic for medical consultations in April 2008; pathology reports and invoices dated April 2008; Ambulance Service invoices showing that the applicant was taken to hospital by ambulance on [the date in] March 2008; and documents from the [relevant hospital] dated [in] March 2008 detailing that the applicant had suffered a seizure.
[In] June 2015 the independent expert provided an opinion that the applicant had not suffered relevant family violence.
On 7 July 2015 the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to comment on the opinion of the independent expert that he had not suffered relevant family violence. The Tribunal letter was returned to sender on 15 July 2015. The applicant subsequently contacted the Tribunal to advise that he had changed his address several weeks previously. The Tribunal again wrote to the applicant on 11 August 2015 at his new address pursuant to s.359A of the Act inviting him to comment on the opinion of the independent expert that he had not suffered relevant family violence.
On 24 August the Tribunal received a response from the applicant re-iterating that he had suffered abusive treatment from his former wife and sponsor, and describing that treatment. His response also states that he has suffered from anxiety and depression for several years and is taking ant-depressant medication. He states that he fears for the future as he has lost everything. His letter states that he would much rather end his life in Australia than return to Egypt and that he cannot live under this pressure any more. His letter attaches a copy of a referral letter dated [in] August 2015 in respect of the applicant from [Doctor E] to [Doctor F] indicating that the applicant is suffering from stress and suicidal ideation caused by domestic abuse by his wife. The letter also contains copies of documents already before the Tribunal in the nature of character references from the applicant’s work colleagues, and from the witness at hearing [Mr A], and a copy of the divorce order ending the marriage between the applicant and his former sponsor in October 2011. The Tribunal has considered the applicant’s response, but finds that the response does not constitute new evidence.
The Tribunal is satisfied that the opinion 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.
Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.
Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.820.221(3) 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
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa
Mary Cameron
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
1.21 Interpretation
(1)In this Division:
competent person means:
(a)in relation to family violence committed against an adult:
(i)       a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or
(ii)      a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or
(iii)     a person who:
(A)is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and
(B)is performing the duties of a registered nurse; or
(iv)    a person who:
(A)is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and
(B)is performing the duties of a social worker; or
(v) a person who is a family consultant under the Family Law Act 1975; or
(vi)    a person holding a position of a kind described in subregulation (2); or
(b)in relation to family violence committed against a child:
(i)       a person referred to in paragraph (a); or
(ii)      an officer of the child welfare or child protection authorities of a State or Territory.
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.
(2)The positions referred to in subparagraph (a)(vi) of the definition of competent person in subregulation (1) are:
(a)manager or coordinator of:
(i)       a women's refuge; or
(ii)      a crisis and counselling service that specialises in family violence; or
(b)a position with:
(i)       decision-making responsibility for:
(A)a women's refuge; or
(B)a crisis and counselling service that specialises in family violence;
that has a collective decision-making structure; and
(ii)      responsibility for matters concerning family violence within the operations of that refuge or crisis and counselling service.
…
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)unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator — that 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.

[2015] AATA 3589

29 October 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice