1730034 (Migration)

[2019] AATA 2753

1730034 (Migration) [2019] AATA 2753 (15 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730034

MEMBER:Rosa Gagliardi

DATE:15 May 2019

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:

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

Statement made on 15 May 2019 at 2:02pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – relationship ceased – sponsorship withdrawn – arranged marriage – notions of romance and love – genuine spousal relationship existed – family violence – physical abuse – control of finances – belittling – control of movement and communication – non-judicially determined claim – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.23, 1.24, 1.25; Schedule 2, cl 801.221

CASES
Guven v MIMIA [2006] FMCA 311

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 on 9 November 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 June 2015 on the basis of her relationship with her [sponsor]. At that time, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

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

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.801.221 because the sponsorship was withdrawn and it did not appear that the applicant met any of the relevant exceptions for the grant of the visa.

5. On the strength of the evidence before it, the Tribunal has decided to make a decision without holding a hearing.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. The Tribunal notes that on 14 August 2015 the Department wrote to the applicant to advise that her subclass 820 visa had been granted.  The Tribunal cannot rely solely on the basis that a visa has been previously granted to an applicant, however, to determine that the relationship had always been genuine and continuing.

10. The provisions of cl.801.221 indicate that a genuine partner relationship within the meaning of the Act must have existed before the relationship ceased and the applicant would have otherwise met the criteria in cl.801.221. This means that, while the claims of family violence do not have to cause the cessation of the relationship, the relationship which has ceased must have been one which would otherwise have met the requirements of the relevant legislation.

11. This approach was approved in the case of Guven v MIMIA [2006] FMCA 311 at [22]-[26] where Harnett FM found that when considering the grant of a Subclass 100 Spouse (Residence) visa, it was open to the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a spousal relationship within the meaning of the Regulations and only where it found that such a spousal relationship existed, was it required to make a further finding in relation to claims of domestic violence (as it was then referred to).

12. The Tribunal finds that the circumstances in Guven v MIMIA are similar to the circumstances in the current application before the Tribunal. Although the case in Guven v MIMIA concerned an offshore partner visa application and the present case concerns an onshore partner visa application, the wording in the regulations is similar.  Therefore before assessing whether the applicant has suffered relevant family violence, the Tribunal must assess whether at any point of time the applicant and the sponsoring partner were in a spousal relationship within the meaning of the Regulations, regardless of whether the applicant had been previously granted a Subclass 300  visa.

13. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a) - (d).

14. The Tribunal notes that in the psychologist’s report ([Dr A]’s report for the purposes of Schedule 1), dated 21 December 2018, he observed that the marriage was devoid of romantic love from the start as it had been an arranged one, and the applicant was eager to fulfil the traditional requirements of being a wife.  [Dr A] states that from his observation, the marriage was never “good” even if the applicant perceived it to be so at the beginning.  For the terms of Regulation 1.15A, however, the Tribunal notes that case law indicates that a genuine and continuing spousal relationship does not need to involve notions of romance and being “in love”.  If the parties have a mutual commitment to a shared life to the exclusion of other, and even if their expectations of what married life might entail are different to Western notions, it cannot be concluded that the relationship was never genuine.  [Dr A] in a report dated 21 December 2018, states that while the marriage was arranged, “Her narrative recollection was that she was appropriately romantically attracted to her husband at that time”. 

15. The Tribunal has considered all the circumstances of the relationship and given that the Tribunal has not been able to find adverse material that would point to the parties having entered into the relationship for the sole purpose of the applicant gaining a migration outcome, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased.

16. In a submission to the Tribunal dated 14 May 2019, the migration agent submitted, among other things:

    The couple first met in India in November 2010 and their relationship began.  On arrival in Australia in 2014, the couple lived together in a marital relationship until October 2016, when the Review Applicant returned to India to spend time with her parents.  The Applicant believes her relationship with her sponsor ended with her last correspondence with the sponsor [in] January 2017.

    The applicant states that for the first year, her relationship with her husband was a happy one.  However, in the following year, the sponsor’s behaviour became more and more controlling, culminating in instances of physical violence towards the Applicant, commencing in late 2015.

    During the second year of the Applicant’s relationship with her husband, the applicant came to know the sponsor’s violent nature and simply tried to make the best of her unhappy situation.  The applicant departed Australia, to see family in October 2016, and the couple have not communicated since January 2017. 

17. The Tribunal is satisfied that the claimed family violence occurred within the marriage as required by the Regulations and not after it had ceased.

18. 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.

19. 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).

20. 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?

21. 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.

22. 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.

23. 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).

24. The applicant has submitted evidence a statutory declaration signed by her (Form 1410) dated 14 May 2019, which conforms to the requirements of r.1.25.  The applicant has:

    
    
    

    ·set out the allegation of relevant family violence (that is, there must be an allegation of conduct against the relevant persons or their property that causes the alleged victim to reasonably fear for or reasonably be apprehensive about his or her wellbeing or safety); and

    ·named the person they allege has committed the family violence.

25. The applicant’s statutory declaration refers to the details of the claimed family violence:

    ·Limiting communication the applicant could have with family and friends;

    ·Inability to leave the house without the sponsor and his mother accompanying her/being enslaved;

    ·Belittling;

    ·Control by the sponsor of finances leaving the applicant without access to a bank account; and

    ·Significant physical abuse.

26. A non-judicially determined claim of family violence also requires that in addition to her own statutory declaration, the applicant is required to provide two types of evidence set out under Schedule 1, providing prescribed information.  The current instrument, IMMI12/116 specifies that a minimum of two different types of the following be given:

    ·a medical report, hospital reports, discharge summary or statutory declaration made by a registered medical practitioner or nurse, acting in that capacity;

    ·a report, record of assault, witness statement or statutory declaration made by a police officer;

    ·a witness statement made by someone other than the alleged victim or a police officer during the course of a police investigation;

    ·a report or a statutory declaration by a child welfare authority officer or a child protection authority officer;

    ·a letter or assessment report (on letterhead) from a women’s refuge or a family violence crisis centre;

    ·a statutory declaration made by a member, or person eligible to be a member of the Australian Association of Social Workers who has provided counselling in that role to alleged victim;

    ·a statutory declaration made by the alleged victim’s treating registered psychologist;

    ·a statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website;

    ·a statutory declaration or letter (on letterhead) made by a school counsellor or principal acting in that capacity.

27. In this case the applicant is relying on a medical report from the applicant’s treating medical practitioner who refers to the family violence experienced by the applicant and refers to the applicant suffering from depression as a consequence.  In addition to placing the applicant on [Medication 1], a mental health care plan was organised for her to receive counselling by

    
    

    [Dr A], Clinical Psychologist.[1]

    [1] Report by [Dr B], [Health Service Provider 1], dated 15 January 2019.

28. The applicant is also relying on a statutory declaration and report by [Dr A].  The statutory declaration dated 11 January 2019 covers the report (dated 12 December 2018) by [Dr A] setting out the testing he undertook to arrive at his opinion (expressed in the covering statutory declaration) that the applicant was subject to family violence.

29. The Tribunal is satisfied that [Dr A]’s services are being pursued by the applicant for therapeutic reasons and not for the sole purpose of gaining a report to make out claims of family violence.

30. Therefore, the evidence presented meets the requirements of r.1.24. As such, a non-judicially determined claim of family violence has been made under r.1.23.

31. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl.801.221(6)(b) and (c). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

32. 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:

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

    Rosa Gagliardi
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21 Interpretation

    In this Division:

    independent expert means a person who:

    (a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and

    (b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.

    non-judicially determined claim of family violence has the meaning given by subregulations  1.23(8) and (9).

    relevant family violence means conduct, whether actual or threatened, towards:

    (a)the alleged victim; or

    (b)a member of the family unit of the alleged victim; or

    (c)a member of the family unit of the alleged perpetrator; or

    (d)the property of the alleged victim; or

    (e)the property of a member of the family unit of the alleged victim; or

    (f)the property of a member of the family unit of the alleged perpetrator;

    that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

    statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.

    violence includes a threat of violence.

    …

    1.23     When is a person taken to have suffered or committed family violence?

    (1)For these Regulations, this regulation explains when:

    (a)a person (the alleged victim) is taken to have suffered family violence; and

    (b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.

    Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.

    Circumstances in which family violence is suffered and committed — injunction under Family Law Act 1975

    (2)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.

    (3)For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.

    Circumstances in which family violence is suffered and committed — court order

    (4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and

    (b)[…] order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.

    (5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — conviction

    (6)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:

    (a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or

    (b)recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.

    (7)For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — non-judicially determined claim of family violence

    (8)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.

    (9)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim is:

    (i)       a spouse or de facto partner of the alleged perpetrator; or

    (ii)      a dependent child of:

    (A)the alleged perpetrator; or

    (B)the spouse or de facto partner of the alleged perpetrator; or

    (C)both the alleged perpetrator and his or her spouse or de facto partner; or

    (iii)     a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and

    (c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:

    (i)       the alleged victim has suffered relevant family violence; and

    (ii)      the alleged perpetrator committed that relevant family violence.

    (10)If an application for a visa includes a non-judicially determined claim of family violence:

    (a)the Minister must consider whether the alleged victim has suffered relevant family violence; and

    (b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

    (c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

    (i)       the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

    (ii)      the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.

    (11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.

    (12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    (13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.

    (14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.