1607859 (Migration)

[2018] AATA 3134

1607859 (Migration) [2018] AATA 3134 (25 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1607859

MEMBER:Denis Dragovic

DATE:25 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

Statement made on 25 May 2018 at 6:49am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Whether the applicant is subject of a sponsorship – Sponsorship withdrawn by the sponsor – Non-judicially determined claim of family violence – Where the applicant has not provided evidence of the prescribed type – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 362A, 375A
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25, Schedule 2, cls 820.211, 820.221

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] May 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 June 2014 on the basis of his relationship with his sponsor, [named]. At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

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.820.211 and 820.221 which require that at the time of application and decision, 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.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(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.820.221 because the delegate was not satisfied that the nature of their commitment to each other was long-term, that they drew emotional support and companionship from each other or that they had a commitment to a shared life. The delegate was also not satisfied that they presented themselves to family and friends as being a in a committed partner relationship or regarded each other as such. Similarly, the delegate found that the financial aspects of the relationship were not consistent with having a spousal or de facto relationship.

5. A s.375A certificate dated 4 July 2016 was attached to the departmental file. The tribunal sent the applicant a letter dated 8 May 2018 informing him of this certificate and explaining that it found the certificate not to be a valid certificate for the reason that it did not explain how the disclosure of the material would not be in the public interest. The letter provided a summary of the material behind the certificate including the following language:

   This letter provides you with a summary of the material under the certificate and the reason why it is not relevant to the review.

   The material includes confidential allegations, investigative methods undertaken by the Department, information from Centrelink and information taken from the sponsor's phone.

   This material is not relevant as the sponsorship has been withdrawn and as such cl.820.221(1) is not met. The genuineness of the relationship will be considered if and when the statutory requirements for family violence as per cl.829.221(3) are met.

6. The applicant responded to the letter by first requesting the Tribunal to consider compelling and compassionate reasons. The scope to consider compelling and compassionate reasons available to a decision maker under the law does not extend to the particular circumstances of the applicant. As such I have not considered them. The applicant provided additional information regarding his case but did not comment on the s.375A certificate.

7. The representative of the applicant wrote a separate brief email to the Tribunal dated 17 May 2018 reproduced here in its entirety:

   
   
   

   Thank you for your email. However, the only reason for disclosure from the third parties was to prove the fact that the Applicant and the spouse were in genuine and ongoing relationship when the Domestic Violence occurred. Also please note that the email does not contain the folios as mentioned and therefore my client cannot provide any statement and/or declaration as requested.

8. As the certificate was found to be invalid it is for the Tribunal to exercise its discretion as to whether to release any of the material unless disclosure is required under s.359A or s.362A. I have reviewed the material and found it not to be relevant to the matters at hand, namely whether there was family violence. I have not engaged with the question of whether the material behind the certificate could prove whether there was a genuine and ongoing relationship. I took this path for the reason, as explained further below, that since the sponsor has withdrawn I have chosen to first consider whether there are any circumstances as envisaged by the law—death of the partner, domestic / family violence and circumstances where there is a child in respect of whom the applicant and sponsor have certain rights and obligations—such that exceptions to the continuing relationship requirement for a Partner visa can be made. In the applicant’s case he has claimed family violence. The material behind the certificate is not relevant to the matter of whether family violence existed and as such I have not provided the material for the applicant to comment upon.

9. The applicant appeared before the Tribunal on 16 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [three particular individuals].

10. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. In the present case, the [sponsor] has withdrawn her sponsorship of the applicant by way of a letter to the Department and Tribunal via her representative and another from herself to the Tribunal both dated [in] February 2018. The reasons given for the withdrawal of sponsorship are that the marriage has broken down. The primary criteria to be satisfied at the time of application are to be found in cl.820.211 and at time of decision cl.820.221. At the time of decision c.820.221(1)(a) requires that the applicant continues to meet the requirements of the applicable clause under 820.211 which in this instance is cl.820.211(2). This clause has under sub-section (c) the requirement that the applicant is sponsored. With the withdrawal of sponsorship the applicant does not meet cl.820.221(1).

13. At the hearing the applicant claimed that his relationship with [the sponsor] was genuine but that he has been the victim of family violence.

14. The regulations allow for such circumstances. While the applicant no longer meets cl.820.221(1) and there is no evidence that he meets subclause (2), the claim is that subclause (3) is enlivened as it states that the applicant meets the requirements if the sponsoring partner or the applicant has suffered family violence committed by the sponsoring partner.

15. 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. 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).

16. 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?

17. 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.

18. 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 (see IMMI 12/116). IMMI 12/116 specifies a minimum of two items of evidence from the list in Schedule 1 to the instrument, and that no more than one of each type may be presented for the purposes of r.1.24(b).

19. 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).

20. At the hearing the applicant’s representative requested additional time to provide the required documentation. This request was granted.

21. On 12 April 2018 a statutory declaration and a psychologist’s report dated [in] April 2018 were provided. The statutory declaration from the applicant named the [sponsor] as the perpetrator of the violence. The violence it alleges included mental harassment, frequent arguments and being thrown out of the house and not allowed to meet his step-son. The psychologist’s report submitted alongside the statutory declaration does not mention domestic violence, instead it focuses on his challenges in managing his emotional and psychological responses to the breakdown of his marital relationship.

22. I have also considered an earlier psychological report dated [in] March 2018 from the same psychologist submitted to the Tribunal which discussed the claims of violence in terms of accusations that he committed acts against his sponsor.

    The relevant section of the report reads as follows:

    [The applicant] reported that he had been “kicked out of my marriage” approximately three weeks prior to the first consultation. He stated that she reported to authorities that [the applicant] had been violent towards her, verbally and physically, in particular, he stated that she accused him of “beating her up”. As a result of police and court intervention, [the applicant] disclosed that he been (sic) placed on an Intervention Order as sought by his wife, and now is forbidden to see his wife and or his step children. [The applicant] strongly denied that these accusations were true.

23. To meet the evidentiary requirements of the legislative instrument IMMI 12/116, the report from the psychologist needed to include the following details: state in their opinion the alleged victim was subject to family violence, detail the reasons for the opinion, and identify the alleged perpetrator. In the absence of these elements I find that the applicant has not provided evidence of the type described in IMMI 12/116 and therefore, the evidence presented does not meet the requirements of r.1.24. The applicant has not provided any other type of evidence as identified within IMMI 12/116. As such, a non-judicially determined claim of family violence has not been made under r.1.23.

24. 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

25. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

    Denis Dragovic
    Senior 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.