1610653 (Migration)

[2018] AATA 1176

1610653 (Migration) [2018] AATA 1176 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610653

MEMBER:K. Chapman

DATE:1 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 01 March 2018 at 3:59pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Relationship with the sponsor ceased – Victim of family violence – Sexual, financial and emotional abuse – Non-judicially determined claim of family violence – Statutory declaration – Sponsorship withdrawal – Medical Certificate

LEGISLATION

Migration Act 1958, ss 65, 359

Migration Regulations 1994, Schedule 2 cl 820.211, 820.221, rr 1.21, 1.23-1.25

CASES

Minister for Immigration & Multicultural Affairs v Lay Lat (2006) FCAFC 61

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] June 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, [named], applied for the visa [in] November 2015 on the basis of the 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 his case.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.221 as the relationship between the applicant and the sponsor had concluded and a claim of non-judicially determined family violence had not been made. On 14 July 2016, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application.

5. On 4 January 2018, the Tribunal wrote to the applicant, pursuant to subsection 359(2) of the Act, inviting him to provide further information in support of his claims that he and the sponsor were in a spouse or de facto relationship at the time of the visa application, and also regarding how he may satisfy the time of decision criteria where the sponsoring partner has withdrawn their sponsorship. Following the grant of an extension of time to respond, on 1 February 2018 the applicant responded to the invitation. He provided a written submission from his representative, a medical certificate dated [in] April 2016 from [Doctor A] and a report dated [in] January 2018 from psychologist [Psychologist A]. The Tribunal has duly considered the aforementioned information and all other material contained in its file and the Departmental file.

6. The applicant appeared before the Tribunal on 1 March 2018 to give evidence and present arguments. He confirmed he did not require an interpreter, that he was feeling well enough to give his evidence, and that no other witnesses would be required. The applicant was represented in relation to the review by his registered migration agent who attended the review hearing and had been on the record since lodgement of the review application.

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

   ISSUES AND LAW

8. In the present case, the applicant claims his de facto relationship with the sponsor has ceased and he has been the victim of family violence. 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 submits that the family violence occurred during the de facto relationship with the sponsor.

9. For visa applications made on or after 9 November 2009, the Regulations explicitly require family violence to have occurred when the de facto relationship was still in existence. The de facto relationship must therefore have existed before it can be determined that it has ceased. If the Tribunal is not satisfied that a de facto relationship existed, the family violence exception to the continuing relationship requirement will not be available: r.1.23(3), (5), (7), (12) and (14).

10. Therefore, the issues in the present matter concern whether the applicant was in a de facto relationship with the sponsor at the time of the visa application, and whether he may avail himself of the ‘family violence exception’ to the requirement to have maintained the de facto relationship at the time of decision.

    Whether the parties were in a spouse or de facto relationship

11. As is relevant to the present application, clause 820.211(2)(a) requires that at the time the visa application was made the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims at the time of the visa application to be the de facto partner of the sponsor, who is an Australian citizen. Having carefully considered the evidence, the Tribunal is satisfied that the applicant was in a de facto relationship with the sponsor at the time of the visa application. Accordingly, the Tribunal must determine whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

    Evidence at the review hearing

12. The applicant’s oral evidence may be summarised as follows. His relationship with the sponsor concluded in April 2016 when he left their joint residence. The applicant advised that when the sponsor did not get his own way he blamed him for the cost involved in sponsoring the visa. He also outlined that the sponsor verbally abused him and demanded sexual intercourse whenever he wanted it. When the applicant refused, the sponsor would become angry with him. The applicant indicated he was not physically harmed by the sponsor, rather the sponsor sexually, financially and emotionally abused him by threatening to remove him from their residence, call the police and Department to have him removed, demand increased financial contributions and demand sexual intercourse from him.

13. The applicant confirmed no court orders were in place with respect to himself and the sponsor. He contended that the sponsor engaged in conduct towards him that caused him to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety. In response to questions from the Tribunal, the applicant advised that he last saw the sponsor in person around mid-2017 to borrow a lawn mower and that he had been in occasional mobile text communication with him since their relationship concluded. The applicant indicated he was fearful of the sponsor during the relationship, but agreed that now he was not and they were friendly towards each other.

14. The applicant gave oral evidence that towards the end of the relationship with the sponsor they together saw a psychologist. Oral submissions from his representative suggested this was not a psychologist but a counsellor. No written report was before the Tribunal from this person. The applicant explained that he saw a General Practitioner, [Doctor A], about one week after the relationship broke down. He saw her on about 3 occasions. She did not prescribe him medication but apparently said he had anxiety. [Doctor A] referred the applicant to a psychologist. The applicant advised he saw [Doctor A] around two times prior to her writing a Medical Certificate dated [in] April 2016. The applicant advised he had seen psychologist, [Psychologist A], on three occasions prior to her making her report dated [in] January 2018. He started seeing [Psychologist A] in mid-2017 and last saw her in January 2018. He has not been prescribed any medication in respect of a mental health condition, nor has he seen a psychiatrist. The applicant advised he had not consulted any other professional with regard to his claim of having suffered 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. No evidence of a joint undertaking to a court is before the Tribunal. This leaves for consideration whether evidence referred to in r.1.24 has been submitted to the Tribunal, 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 dated 22 November 2012).

16. 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 dated 7 May 2016 from the applicant conforming to the requirements of r.1.25(2) was before the Tribunal at the time of this decision.

17. The applicant submitted various documents to the Department in attempting to make a non-judicially determined claim of family violence following the withdrawal of the visa sponsorship. One document is a Medical Certificate from [Doctor A] dated [in] April 2016 which states as follows:

    “This is to certify that [in April] 2016, I examined [the applicant] who is under a lot of stress given his recent separation from his partner. This issue is going to have some implication on his working visa status in Australia. If you have any questions regarding the above please do not hesitate to contact me.”

18. At the review hearing the Tribunal raised with the applicant that the Medical Certificate from [Doctor A] (which was also submitted to the Tribunal) does not refer to him being a victim of family violence, or raise the topic of family violence, and that it might not constitute a medical report detailing the treatment for mental health that is consistent with the claimed family violence and therefore might not be a piece of evidence for the purposes of making a non-judicially determined claim of family violence. The applicant was invited to comment and indicated he saw [Doctor A] because he was unwell from the relationship. Following careful consideration, the Tribunal does not accept that the report from [Doctor A] satisfies the evidentiary requirement contained in r.1.24 (by virtue of not being a piece of evidence referred to in instrument IMMI 12/116) as it is brief, generally worded and does not draw a link to the applicant having suffered from family violence as opposed to suffering stress from his relationship breakdown.

19. The applicant submitted to the Tribunal a report from psychologist [Psychologist A] dated [in] January 2018 which indicates he has suffered sexual and domestic abuse from the sponsor, but has not been diagnosed with any psychological or psychiatric condition. At the review hearing the Tribunal raised with the applicant that the report from [Psychologist A] was not in Statutory Declaration form and therefore might not be a piece of evidence for the purposes of making a non-judicially determined claim of family violence. The applicant was invited to comment and initially did not wish to do so. He was again later invited to comment upon the evidentiary aspects of both [Doctor A’s] Medical Certificate and [Psychologist A’s] report and he replied that he saw both persons because he felt unwell from the relationship.

20. Following careful consideration, the Tribunal does not accept that the report from [Psychologist A] satisfies the evidentiary requirement contained in r.1.24 (by virtue of not being a piece of evidence referred to in instrument IMMI 12/116) as it is not in Statutory Declaration form. For completeness, the Tribunal notes that the applicant submitted various other documents to the Department in support of his claim to have suffered family violence, however none constitute a piece of evidence for the purposes of r.1.24.

21. The applicant’s representative requested the Tribunal to provide further time after the review hearing for evidence to be submitted in the required format to make a non-judicially determined claim of family violence. The representative indicated it was his error in not submitting the correct material to date. The Tribunal outlined that [in] April 2016 the Department provided a natural justice letter to the applicant to respond to the sponsorship withdrawal (as reflected in the delegate’s decision), [in] June 2016 the primary visa refusal decision was made, the application for review was lodged on 14 July 2016, the invitation pursuant to s.359(2) of the Act was sent on 4 January 2018 (with an extension of time to respond granted) and the hearing invitation was sent on 2 February 2018.

22. In light of the above chronology, the Tribunal asked the representative to submit why more time is required. The representative submitted that the psychologist report indicates the applicant has been under pressure and suffered family violence. The Tribunal asked the representative whether the post-separation contact between the applicant and the sponsor was consistent with him having suffered family violence during the relationship, to which he responded that the violence was suffered during the relationship but now the parties had ‘moved on’. The Tribunal carefully considered the request for an extension of time but declined to grant one given the chronology of the matter, and its satisfaction that the applicant has had a fair opportunity to present the required evidence to make a non-judicially determined claim of family violence.   

    CONCLUSION

23. The Tribunal notes that it is not required to make the applicant’s case for him, as was held by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61. Rather, it is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. The Full Federal Court held, at [76]:

    In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.

24. [The applicant] did not submit evidence satisfying the requirements of r.1.24 to the Tribunal by the time of this decision. It is worth pausing to reflect that the Subclass 820 visa refusal decision was made [in] June 2016, approximately 20 months prior to the review hearing. Before that visa refusal decision [the applicant] was provided with the opportunity by the Department to submit additional information relevant to his case. After careful consideration, the Tribunal is satisfied [the applicant] was afforded a fair opportunity to submit evidence relevant to his claims of having suffered family violence during his relationship with the sponsor. The evidence presented by him does not satisfy the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made in accordance with r.1.23.

25. 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

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

    K. Chapman
    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.