1727810 (Migration)

[2022] AATA 2522

1727810 (Migration) [2022] AATA 2522 (29 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727810

MEMBER:Donna Petrovich

DATE:29 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

·801.221 of Schedule 2 to the Regulations

·cl 801.221(6)(b) and 801.221(6)(c) of Schedule 2 to the Regulations.

Statement made on 29 June 2022 at 3:52pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased and non-judicially determined claim of family violence – assaults, harassment and threats – statutory declarations, psychological report and police record of interview – detailed and consistent accounts – opinion of independent expert taken as correct – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23(9)(c), 1.24(b), 1.25(1), (2), Schedule 2, cl 801.221(2), (6)(b), (c)(i)

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 and Border Protection on 20 October 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 May 2013 based on his relationship with his sponsor, [Ms A]. 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 (Cth) (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 at the time of decision, unless the relationship has ceased in certain circumstances. 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 that the couple’s relationship ended in circumstances involving domestic violence.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 801.221 at the time of decision.  This is because the delegate found that at the time of decision there was no information before the delegate to demonstrate that the applicant continued to be the spouse or de-facto partner of the sponsoring partner.  Therefore, the delegate found that the applicant did not satisfy subclause (2).  In forming this conclusion, the delegate found in part, that no evidence of family violence committed by the sponsor against the applicant, had been provided at the time of decision to explain the ending of the couple’s relationship.

   Background

5. The applicant is a [Age] year old Malaysian man who arrived in Australia in or around January 2010.  The applicant and sponsor commenced their relationship on or about February 2011.  They married [in] April 2013.

6. On 20 October 2017, the delegate made the determination that the criteria for the grant of a Partner (Residence) (Class BS) Subclass 801 visa were not met.

7. The applicant alleges that he suffered two incidents of family violence on 1 February 2014 and 2 February 2014, after which the sponsor left the marital home on 2 February 2014.  The applicant alleges that there were further incidents of harassment by the sponsor via text and telephone calls on 10 April 2015.  Alleged relevant family violence included actual and threatened conduct towards the applicant committed by the sponsor such as punching, scratching, verbal and psychological abuse.

8. A psychological report from [Mr B] dated 10 April 2020 was provided by the representative.  This report provides details of the abuse and of the 2014 physical violence that had a profound impact on the applicant both mentally and emotionally. 

9. The applicant’s representative also submitted a police record of interview dated 20 February 2014, which detailed the alleged assault of the applicant by the sponsor.  In the report, it is stated by the applicant that “she [the sponsor] assaulted me in the car, she punched me, she hit me in the car, right where I picked her up from work”.

10. The applicant appeared before the Tribunal on 26 November 2021 to give evidence and present arguments.  The Tribunal also received oral evidence from [Mr C] and [Ms D]

11. The Tribunal referred the applicant’s claims of family violence to an independent expert on two (2) occasions.  A comprehensive report from the independent expert was received by the Tribunal, following a face-to-face interview with the applicant conducted on 8 June 2022 by [Psychology provider].     

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant claims the relationship with the sponsor ([Ms A]) has ceased, in circumstances where she subjected him to family violence.

14. The Tribunal heard of the meeting of the applicant and sponsor.  Their relationship commenced in February 2011, and the couple married in a civil ceremony [in] April 2013.

15. Based on the evidence the Tribunal is satisfied that the couple were in a partner relationship and that this relationship has now ceased.

16. The issue that arises is whether the applicant has suffered family violence committed by the sponsor within the meaning of the Regulations.

17. Under reg 1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court.  In the alternative, the visa application includes a non-judicially determined claim of family violence where 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 reg 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: reg 1.23(3), (5), (7), (12), (14).

18. 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?

19. Under reg 1.23 a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator, or evidence is provided in accordance with reg 1.24.  Reg 1.23(9)(c) provides that a non-judicially determined claim of family violence is included in an application where the alleged victim presents evidence in accordance with regulation 1.24 that they have suffered relevant family violence committed by the alleged perpetrator. 

20. The applicant seeks to rely on the type of evidence referred to in reg 1.24, to establish his claim for non-judicially determined family violence.  That is, a statutory declaration by the applicant claiming that he has been subjected to the family violence by the sponsor has been provided to the Tribunal in accordance with the requirements of reg 1.25(1) and (2).  Also, as per reg 1.24(b), the applicant seeks to rely on the type of evidence specified in the Ministerial Instrument for these purposes (see IMMI 12/116, commences on 24 November 2012, dated 22 November 2012). 

21. Regulation 1.25(1) provides that a statutory declaration supporting claim for non-judicially determined family violence, 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, and name the person alleged to have committed the relevant family violence (r.1.25(2)).  Where the conduct was not directed at the spouse or partner, the statutory declaration must name the person to whom it is directed and their relationship with the deponent: reg 1.25(3). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).

22. The Tribunal received [the applicant’s] statutory declaration dated 13 March 2020 from his representative on 16 March 2020 and 23 November 2021, setting out the allegations of family violence.  An additional statutory declaration was received from [Mr C] dated 13 March 2020 on 16 March 2020 and 23 November 2021.  The statutory declarations of the applicant and witnesses evidence the ongoing physical, emotional, verbal and psychological abuse experienced by the applicant. This evidence meets the requirements of reg 1.24.  As such a non-judicially determined claim of family violence has been made under reg 1.23.

    Has the applicant suffered family violence?

    Opinion sought from Independent Expert

23. The visa application included a non-judicially determined claim of family violence to satisfy reg. 820.221.  Subsequently, the Tribunal referred the non-judicially determined claim of family violence to an independent expert.

24. Following the Tribunal hearing on 26 November 2021, the applicant and his claims of family violence were referred for assessment by independent expert.  An independent expert report dated 1 February 2022 was received at the Tribunal, but it did not support the claims of family violence raised by the applicant. 

25. [The applicant] disputed the first independent expert findings as he felt he had been denied procedural fairness.  The applicant’s representative sought a further in person hearing and requested another independent expert.

26. The Tribunal agreed to a further independent expert assessment.  This was conducted by [Ms E], Forensic Psychologist, BPsych, GradDip Psych, MPsych (Forensic) and contractor to [Psychology provider].  This second independent expert report provided to the Tribunal is dated 22 June 2022.

27. On 8 June 2022, a face-to-face hearing was conducted by [Psychology provider] with the applicant. Proof of identification of the applicant was provided via his Malaysian passport [Number].

28. The opinion of the independent expert was sought to determine whether the conduct of the sponsor caused the alleged victim to reasonably fear for or to be reasonably apprehensive about his wellbeing or safety. 

29. The independent expert heard from the applicant with respect to the second claim of psychological abuse.  The applicant alleged that the sponsor ([Ms A]) made a false claim of family violence against him. The applicant claimed that the sponsor has falsely alleged to police on 20 February 2014 that he had been controlling throughout their marriage, made threats to kill her and physically assaulted her on 8 February 2014 (by pushing her forcefully to the floor and punching her leg).

30. No charges were brought against the applicant and [Ms A’s] was unsuccessful in her attempt to obtain a protection order against him. 

31. [The applicant] alleged that based on this false claim he was arrested, ‘beaten” by a police officer and has since been subject to ridicule and exclusion.  The ridicule and exclusion that he has experienced has been both social and occupational.  The independent expert report found that when [the applicant] ‘s claim of psychological abuse was tested and assessed, his accounts were sufficiently detailed, consistent across sources and remained robust to challenge.  The independent expert found that [Ms A’s] conduct, as alleged by [the applicant], was an act of family violence in that it was intended to cause harm.

32. The independent expert canvassed in her report the impacts of the claimed psychological abuse experienced by [the applicant].  [The applicant] described his experiences of sadness, shame and excessive worry all linked to [Ms A’s] actions and his concerns about being deemed a family violence perpetrator.  The independent expert found that [Ms A’s] alleged conduct caused [the applicant] to reasonably fear for and to be reasonably apprehensive about his own wellbeing and safety.

33. The Tribunal is satisfied that the opinion is authorised by the Regulations.  This is because it is not only provided by an independent expert (who is a person suitably qualified to make independent assessments of non-judicially determined claims of family violence), but is made by an employee of an organisation specified in a Gazette notice for this purpose in accordance with reg 1.23 and was properly made.  Under reg 1.23, the Tribunal is required to take as correct an independent expert’s opinion that is properly made.

34. Where the independent expert’s opinion is that a person has suffered relevant family violence, at least part of the violence that led to that opinion must have occurred while the married or de facto relationship existed.

35. The independent expert has concluded that the alleged family violence took place during the couple’s relationship.  Based on the assessment of the available evidence, it is the independent expert’s opinion, that [the applicant]’s claim of physical abuse meets the criteria for relevant family violence, as defined in the Migration regulations 1994.

36. When the applicant’s claim was objectively tested by the independent expert, she found that his description of [Ms A’s] alleged conduct, represented a clear act of physical abuse.  The independent expert objectively considered that [Ms A’s] alleged conduct caused [the applicant] to reasonably fear for or to be reasonably apprehensive about his own wellbeing or safety.

37. Although [the applicant] acknowledged being physically stronger that [Ms A], he described worrying about the potential for her conduct to result in him being incorrectly labelled and punished as the aggressor.

38. The applicant stated that “[h]e felt fearful whilst driving because he could not protect himself”.  [The applicant] described experiencing symptoms of acute anxiety, including feeling overwhelmed, difficulty organising his thoughts and a sudden urge to flee the situation.

39. It is the objective assessment of the independent expert that [Ms A’s] alleged conduct during this incident caused [the applicant] to reasonably fear or to be reasonably apprehensive about his own well-being and safety.

40. The independent expert examined both incidents of family violence. 

41. The independent expert following a consideration of all of the evidence, finally determined that [the applicant]’s claims of psychological and physical abuse meet the criterial for relevant family violence. 

42. The Tribunal has considered the evidence provided by the applicant and the most recent independent export report.  The Tribunal is of the view that the family violence alleged by the applicant occurred during the couple’s relationship.          

43. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for reg. 1.21 and reg. 1.22.

44. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the Tribunal finds that the applicant meets the requirements of cl 801.221(6)(b) and 801.221(6)(c).

45. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

46. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

    ·801.221 of Schedule 2 to the Regulations

    ·cl 801.221(6)(b) and cl 801.221(6)(c) of Schedule 2 to the Regulations.

    Donna Petrovich
    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.