1730896 (Migration)

[2021] AATA 1136

1730896 (Migration) [2021] AATA 1136 (10 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730896

MEMBER:Scott Clarey

DATE:10 March 2021

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:

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

Statement made on 10 March 2021 at 11:12am

CATCHWORDS
MIGRATION – Partner (Resident) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased – applicant suffered family violence committed by the sponsor – evidence that the relationship existed – previous extensive joint travel – joint financial commitments – statutory declaration regarding family violence – psychological report – Social Work Assessment Report – decision under review remitted         

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.21, 1.22, 1.23, 1.24, 1.25; Schedule 2, cl 801.221

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 on 22 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 9 July 2013 on the basis of her relationship with her sponsor, [named]. 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: cls.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 delegate was not satisfied that the review applicant is the spouse or de facto partner of the sponsor.

5. The applicant appeared before the Tribunal on 9 March 2021 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. The Tribunal has carefully considered the documentary evidence on the Department’s file and the significant amount of additional evidence that has been submitted to the Tribunal.

9. On 22 June 2020, the Tribunal wrote to [the applicant] pursuant to s.359(2) of the Act inviting her to provide further information to support her claims that she and her partner were in a spouse or de facto relationship. After requesting an extension from the Tribunal, [the applicant] provided the Tribunal with significant additional information in support of her claims on 6 July 2020.

10. The evidence before the Tribunal is that the parties met in 2012, became engaged and then married in 2013 from which time [the applicant] resided with her then sponsor, first at a rental property in [Suburb 1] and then at a property the sponsor purchased in the same suburb in 2015. [The applicant] did not work, but was financially supported by her husband. The Tribunal notes that while the marriage was on foot, the parties engaged in extensive travel together, including two international trips to Thailand where [the applicant] claims she and her husband spent time with her family. The parties also travelled on numerous occasions within Australia, including to Sydney and the Gold Coast and on multiple cruises together. There is evidence before the Tribunal, in the form of boarding passes and various other travel receipts, to support these claims. I note that there is various other evidence before the Tribunal, including bank statements, utility bills, photos of the parties together and socialising with friends, statutory declarations from people attesting to the relationship, medical bills and receipts.

11. The Tribunal notes that at the hearing, [the applicant] gave oral evidence of the timeline and narrative of her relationship that was consistent with the documentary evidence provided. [The applicant] explained that her relationship had started off supportive and loving but over time her husband became controlling and abusive. [The applicant] stated that the relationship deteriorated during the COVID lockdown as they spent more time at home together and the sponsor began to drink more heavily. [The applicant] stated the instances of verbal, physical and sexual abuse increased in their frequency and severity during this time. This culminated in a major domestic incident [in] December 2020, when [the applicant] made the decision to leave the house and end the relationship.

12. On the basis of the evidence before it, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

13. 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).

14. In the present case the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence.

    Has a claim of family violence been made under the regulations?

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.

16. 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).

17. 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).

18. The Tribunal notes that on 3 March it received several submissions from the applicant’s representative relating to the claims of family violence suffered by [the applicant]. These include:

    ·A statutory declaration from the visa applicant (dated 2 March 2021) detailing the breakdown of the relationship and outlining her claims of having suffered family violence at the hand of her sponsor.

    ·A completed and signed form 1410 declaration from the visa applicant.

    ·A psychological report (dated 26 February 2021) by [Dr A] (a registered clinical psychologist, registration number: [number]), that names the sponsor and describes the psychological harm suffered by [the applicant] that in her professional opinion is consistent with the claimed family violence.

    ·A completed and signed form 1410 declaration from [Dr A].

    ·A Social Work Assessment Report [Ms B], a registered social worker (Australian Association of Social Workers member number: [number]). [Ms B] has provided three ‘assessment sessions’ to [the applicant] relating to the claimed family violence. The report names the sponsor, states that [the applicant] has been a victim of family violence and provides extensive reasons for this opinion.

    ·A completed and signed form 1410 declaration from [Ms B].

19. The Tribunal finds that the evidence submitted in support of the claims meets the criteria specific in the relevant instrument. 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.

    Has the applicant suffered family violence?

20. The Tribunal notes that [the applicant]’s oral evidence, the psychological report and the assessment by the social worker all provided consistent and comprehensive detail of the family violence suffered by [the applicant] at the hand of her sponsor within the spousal relationship. The Tribunal notes that in her psychological report (dated 26 February 2021), [Dr A] stated:

    Based on my professional opinion, [the applicant] has experienced family violence including verbal, emotional, psychological and sexual abuse perpetrated by [the sponsor] during the course of their marriage. [The sponsor’s] behaviours caused her to fear for her safety and well-being.

    The Tribunal also notes that, at the hearing, [the applicant] gave an account of the history of her relationship (including examples of various incidences within it that contributed to the family violence) that was both compelling and highly consistent with other evidence before the Tribunal.

21. Having considered all of the evidence before it, the Tribunal is satisfied, for the purposes of r.1.23, that the applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship. As such, the applicant is taken to have suffered family violence in the relevant sense: r.1.22.

22. 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 cls.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

23. 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:

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

    Scott Clarey
    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.