1801306 (Migration)

1801306 (Migration) [2019] AATA 1365 (1 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1801306
MEMBER:Hugh Sanderson
DATE:1 March 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.
Statement made on 01 March 2019 at 9:03am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Federal Court remittal – relationship has ceased – claim of family violence – independent expert opinion sought – applicant taken to have not suffered relevant family violence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 1.25, 1.26; Schedule 2, cl 100.221

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 October 2013 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 7 February 2010 on the basis of her relationship with her [sponsor]. At that time, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
Relevantly to this matter the primary criteria include cl.100.221 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 has suffered family violence committed by the sponsor: cl.100.221(4)(b), (c)(i). The applicant claims this occurred in this case.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because the delegate found that the relationship between the applicant and the sponsor had come to an end and accepted a finding from an independent expert that the applicant had not suffered relevant family violence.
Background
The applicant is a citizen of the Philippines and was born in [year]. She was one of 10 children, six of whom currently reside in Australia. She claimed that prior to her relationship with the sponsor she had never been married or in a long-term relationship with anyone.
In February 2005 she was granted a Subclass 300 Prospective Marriage visa and entered Australia on 4 September 2005. When she arrived she claimed that her sponsor had developed a relationship with another woman and had no intention of continuing his relationship with her. She did not depart Australia when that visa expired and after being granted a series of Bridging visas finally departed Australia [in] September 2007.
It was claimed that the applicant met the sponsor [in] August 2006. They were married [in] September 2007. After the applicant returned to the Philippines she applied for the Partner visa.
The sponsor was born in the Philippines [and] is an Australian citizen. He had previously been married and had four children with his first wife. He divorced his wife [in] January 2007, although claiming that he had been living separately from his wife for about 10 years.
The Partner visa application of the applicant was initially refused by the Department, however, that decision was remitted after a hearing before the Tribunal (differently constituted). The applicant was then granted a Subclass 309 Partner (Temporary) visa on 21 May 2010. The applicant entered Australia [in] June 2010 and commenced living with the sponsor.
In August 2012 the applicant contacted the Department to advise it that the relationship between herself and the sponsor had come to an end. She claimed that she had suffered relevant family violence.
The applicant provided various documents in support of the claim that she had suffered relevant family violence. This included the following:
·Statutory declaration of the applicant dated 10 August 2012;
·Statutory declaration of [Ms A], psychologist, dated 9 August 2012;
·Statutory declaration of [Dr B], general practitioner, dated 17 August 2012; and
·Statutory declaration of [Dr C], general practitioner, dated 16 August 2012.
In her statement, the applicant claimed that she and the sponsor had a good relationship at the start of the relationship, but she became concerned as he would go and spend time with his former wife in their home with their children. On 26 September 2011 she claimed that when they were in bed one night, she accused him of having visited his ex-wife again and he reacted by hitting her in her jaw with his elbow. She claimed that she could not defend herself because she did not want to hit him back and start a fight so she kept quiet.
The applicant claimed the second act of physical violence occurred in mid-October 2011 when she asked the sponsor to massage her leg as it was hurting, but claimed that instead of massaging her leg he hit her leg causing it to be bruised. She did not do anything about this because she was afraid of what he would do if she went to the police and she still loved him and wanted to continue the relationship.
In April 2012 she claimed that the sponsor left her for about a month after they had an argument about the payment of his car registration. When he returned to the house she claimed that he apologised and because she still loved him she forgave him.
On 10 June 2012 when the applicant returned from church, she found the sponsor packing his bags. Despite her begging him not to leave, the sponsor left the home and the applicant believed that he went to live with his ex-wife.
On 5 July 2012, the applicant drove over to the sponsor’s ex-wife’s home where she found the sponsor. The sponsor got into her car and she drove him back to their home. He then started packing his things and saying that he would not return to live with her as he no longer loved her. An incident occurred when she “embraced” the sponsor and he resisted and pushed her away. After he left, the applicant called her sister. She then called the police who made a report. No further action was taken by the police.
The delegate who considered the application was not satisfied that the applicant had suffered relevant family violence and referred the matter to an independent expert. This independent expert concluded the applicant had not suffered relevant family violence. The applicant provided further information to the Department after this report was issued.
The delegate who considered the application found that the parties were no longer in a continuing relationship and accepted the report from the independent expert that found the applicant had not suffered relevant family violence. Accordingly, the delegate found that the applicant did not meet the criteria in cl.100.221 and refused the application.
The applicant applied for a review of that decision before the Tribunal (differently constituted). The matter was again referred to an independent expert who concluded the applicant had not suffered relevant family violence. The Tribunal affirmed the decision to refuse the applicant the Subclass 100 Partner (Residence) visa. That decision was appealed by the applicant. [In] November 2017 the Federal Court of Australia found that there had been an error in the independent expert’s opinion and allowed the appeal and remitted the matter to the Tribunal for further consideration.
The applicant appeared before the Tribunal on 19 October 2018 to give evidence and present arguments.
The applicant gave evidence as to the circumstances of her relationship with the sponsor and the claims she made that she had suffered relevant family violence. After considering all the evidence, the Tribunal was not satisfied that the applicant had suffered relevant family violence and referred the matter to an independent expert for assessment. The Tribunal provided the following documents to the independent expert to assist them in assessing the claims of the applicant:
·Police report;
·Statutory declaration of [Ms A], psychologist, dated 9 August 2012;
·Medical certificate of [Dr B], GP, dated 6 July 2012;
·Statutory declaration of [Dr B], GP, dated 17 August 2012;
·Statutory declaration of [Dr C], GP, dated 16 August 2012;
·Statutory declaration of the applicant dated 10 August 2012;
·Report of [Dr D], psychologist (independent expert), dated 29 August 2013;
·Statutory declaration of [sister of the applicant] dated 20 September 2013;
·Report of [Ms E], psychologist, dated 26 September 2013;
·Report of[Ms F], psychologist (independent expert), dated 29 September 2015; and
·Hearing recording.
A report was provided by [Ms G], forensic psychologist, the independent expert appointed under the Regulations, dated 20 December 2018. This found that the applicant had not suffered relevant family violence.
The applicant was provided a copy of the report pursuant to s.359A of the Act and invited to comment on or respond to its contents. After being granted an extension of time to respond, the applicant’s agent provided submissions dated 29 January 2019, in which the following was argued:
·The applicant was overwhelmed with nervousness and frustration when interviewed by the independent expert and was not able to communicate with her and so just clammed up;
·The applicant denied she was “using” the sponsor or manipulating the system;
·The applicant loved the sponsor and wanted to give him another chance, despite being fearful of him;
·The applicant was also fearful of having to leave Australia where six of her siblings reside;
·The applicant downplayed the sponsor’s abusive behaviour as she was fearful of implicating the sponsor further by reporting his abusive behaviour;
·The independent expert failed to take into account the behaviour of the sponsor holistically and only looked at the allegations of family violence in a piecemeal approach;
·The independent expert showed perceived bias in her finding that the sponsor hitting the applicant with his elbow was not family violence;
·The independent expert failed to consider the allegations of financial abuse;
·The independent expert failed to take into account the actual physical abuse suffered by the applicant;
·The independent expert’s stated opinion that the applicant embellished and exaggerated events was not appropriate; and
·The independent expert discriminated against the applicant by describing her as “tall and solidly built” and this unfairly affected her opinion as to whether she would suffer family violence.
A further hearing was conducted by the Tribunal on 28 February 2019 to consider the issue of whether there was any flaw in the report from the independent expert. The applicant appeared to give evidence and present arguments. The applicant was represented at this hearing by her migration agent who attended the hearing.
The applicant did not raise any new claims of having suffered family violence committed by the sponsor. She said that she did not understand why the Tribunal and the independent expert did not accept her claims. She said that she felt bad that the things the sponsor did to her were not accepted as family violence. She said that the Tribunal had accused her of using the sponsor, when what had happened was that he had been using her.
The Tribunal discussed with the applicant’s agent the submissions the agent provided to the Tribunal in response to the independent expert’s report. The applicant’s agent did not have anything further to add.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence.
On the basis of the evidence, 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.
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 is seeking to establish family violence on the basis of a non-judicially determined claim of family violence.
Has a claim of family violence been made under the regulations?
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.
The applicant in this case is seeking to rely on evidence referred to in r.1.24(1)(b) – namely, a statutory declaration under r.1.25 together with two statutory declarations under r.1.26 by competent persons who hold different qualifications.
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).
A statutory declaration by a competent person under r.1.26 must: be made by a competent person (as defined in r.1.21(1)); set out the basis of the person’s claim to be a competent person for the purposes of the Regulations; state that in the competent person’s opinion, relevant family violence has been suffered by a person; name the person who in the opinion of the competent person has suffered that relevant family violence; name the person who in the opinion of the competent person committed that relevant family violence; name the person to whom the conduct was directed and their relationship to the alleged victim (if the conduct was not towards the alleged victim); and set out the evidence on which the competent person’s opinion is based.
The applicant provided the following documents in support of the claim that she had suffered relevant family violence:
·Statutory declaration of the applicant dated 10 August 2012;
·Statutory declaration of [Ms A], psychologist, dated 9 August 2012;
·Statutory declaration of [Dr B], general practitioner, dated 17 August 2012; and
·Statutory declaration of [Dr C], general practitioner, dated 16 August 2012.
Therefore, statutory declarations meeting the requirements of r.1.25(2) and 1.26 have been provided.
The Tribunal is satisfied that evidence of family violence has been presented in accordance with r.1.24(1)(b) and that therefore a non-judicially determined claim of family violence has been made under r.1.23.
Has the applicant suffered family violence?
Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of r.1.23 that the applicant has suffered relevant family violence. In accordance with the regulation, the Tribunal sought the opinion of an independent expert. On 20 December 2018, the independent expert provided an opinion that the applicant had not suffered relevant family violence.
The Tribunal wrote to the applicant on 2 January 2019 pursuant to s.359A of the Act providing the applicant a copy of the report from the independent expert and inviting her to comment on or respond to the information in the report including commenting on the validity of that report. After the Tribunal gave the applicant an extension of time, the applicant’s agent responded on 29 January 2019 with submissions as to the validity of that report. A summary of the submissions are set out above.
The Tribunal has taken into account the submissions provided by the applicant’s agent and the information provided to the Tribunal at the second hearing. The Tribunal does not accept that the report from the independent expert is flawed in any way.
The Tribunal finds that the applicant has not provided any new information which, if put to the independent expert, would change their opinion. The independent expert has specifically taken into account the demeanour and capacity of the applicant, describing her as “cognitively unsophisticated” in making the assessment of whether the applicant had suffered relevant family violence committed by the sponsoring partner. The description of the applicant before the independent expert, both her physical appearance and manner of her responses and interaction with the independent expert were all part of the assessment of the applicant’s demeanour and her capacity to engage with the independent expert. In doing so, the independent expert is not displaying any bias against the applicant, but is noting the difficulties the applicant has in reporting her claims and in the assessment by the independent expert of those claims. In the process of assessing the applicant’s claim, she has correctly considered the credibility of the claims made by the applicant based on all the information before the independent expert and whether the claims of the applicant support a finding that she suffered relevant family violence.
The independent expert has correctly assessed all claims made by the applicant. She has specifically considered the nature of all claims, including the claims of financial abuse, referring specifically to the claims made by the applicant both when the independent expert interviewed the applicant and previously made by the applicant in reports provided by the applicant to the Department and in previous interviews. No further claims of any family violence committed by the sponsoring partner were made by the applicant and no further relevant information was provided after the independent expert issued their report.
The Tribunal does not accept that the independent expert has not considered the cumulative effect of the claims made by the applicant. As is stated in [the applicant's Federal Court case] “The fact that independent expert identified each incident (as the standardised form required) does not mean that the expert failed to consider the cumulative effect of the material as a whole”. In a proper assessment of the report from the independent expert it is clear the independent expert has considered all the claims of the applicant and considered those claims as a whole when looking at the nature of the relationship between the applicant and the sponsor and whether the applicant had suffered relevant family violence.
The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.

Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.
Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.100.221(4)(b) and (c) 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
The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.
Hugh Sanderson
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
1.21 Interpretation
(1)In this Division:
competent person means:
(a)in relation to family violence committed against an adult:
(i)     a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or
(ii)    a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or
(iii)     a person who:
(A)is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and
(B)is performing the duties of a registered nurse; or
(iv)     a person who:
(A)is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and
(B)is performing the duties of a social worker; or
(v) a person who is a family consultant under the Family Law Act 1975; or
(vi)     a person holding a position of a kind described in subregulation (2); or
(b)in relation to family violence committed against a child:
(i)     a person referred to in paragraph (a); or
(ii)    an officer of the child welfare or child protection authorities of a State or Territory.
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.
(2)The positions referred to in subparagraph (a)(vi) of the definition of competent person in subregulation (1) are:
(a)manager or coordinator of:
(i)     a women's refuge; or
(ii)    a crisis and counselling service that specialises in family violence; or
(b)a position with:
(i)     decision-making responsibility for:
(A)a women's refuge; or
(B)a crisis and counselling service that specialises in family violence;
that has a collective decision-making structure; and
(ii)    responsibility for matters concerning family violence within the operations of that refuge or crisis and counselling service.
…
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)unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator — that 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.

[2019] AATA 1365

1 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction