1807306 (Migration)
[2021] AATA 4102
•19 October 2021
1807306 (Migration) [2021] AATA 4102 (19 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1807306
MEMBER:David Crawshay
DATE:19 October 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa
Statement made on 19 October 2021 at 4:15pm
CATCHWORDS
MIGRATION – Partner (Resident) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased – family violence claims – evidence from two professionally qualified declarants – no psychological treatments or counselling – appropriate referrals not taken up – therapeutic professional relationship – request for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 65, 349, 351
Migration Regulations 1994 (Cth), rr 1.21, 1.23-1.25, 4.15; Schedule 2, cls 100.221, 600.223, 801.221CASES
Dang v MIBP [2016] FCCA 1426
El Jejieh v MICMSMA [2020] FCA 1103
Luwandri v MICMSMA [2020] FCCA 3003
Mekonen v MIBP [2016] FCCA 2715
MIAC v Dhanoa [2009] FCAFC 153
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 27 February 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 31 May 2013 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).
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.
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 applicant was the spouse or de facto partner of the sponsor prior to their relationship ceasing. The delegate therefore found that the applicant did not satisfy cl.801.221(6)(b) and did not then go on to consider her claims of family violence.
The applicant appeared before the Tribunal on 20 September 2021 to give evidence and present arguments. The hearing was conducted remotely via Microsoft Teams video. The Tribunal was assisted by an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by her registered migration agent.
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 sponsor has ceased, and she has been the victim of family violence.
The family violence provision of the Migration Regulations operates as an exception to the requirement that an applicant must be the spouse or de facto partner of the sponsor at the time of decision under cl.801.221(2)(c). The relevant requirements are to be found under cl.801.221(6)(a), (6)(b) and (6)(c)(i), which are cumulative.
Clause 801.221(6)(b) states that “[a]n applicant meets the requirements of this subclause if … the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased”.
The Tribunal is aware of the Federal Court decision of El Jejieh v MICMSMA in which the Court held, among other things, that “the relevant requirement in cl 100.221(4) is that the applicant held and continued to hold a Subclass 309 visa, not that there was a relationship”.[1] The Tribunal notes at this point that the family violence wording of cl.100.221(4) and cl.801.221(6) are substantially similar, meaning that the ratio in El Jejieh relating to the family violence exception in Subclass 100 visas would appear to apply equally to those found in Subclass 801 visas. Wigney J in El Jejieh further held that the Tribunal is required to consider whether an applicant satisfies the requirements of family violence if he or she continues to hold a Subclass 309 (read Subclass 820) visa.[2]
[1] El Jejieh v MICMSMA [2020] FCA 1103, [206] (Wigney J).
[2] Ibid [205].
On the basis of the applicant being granted a Subclass 820 visa on 12 May 2014 and continuing to hold that visa, and in light of the ratio in El Jejieh which the Tribunal considers is binding on it, it accepts that she satisfies cl.801.221(6)(b).
Has a claim of family violence been made under the regulations?
The issue that now 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. If she has suffered such family violence, then she will satisfy the requirements of cl.801.221(6)(c)(i).
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 there has been no evidence to show that the applicant wishes to put forward a claim of judicially determined family violence. Therefore, she does not meet rr.1.23(2), (4) or (6).
Under r.1.23(8), a visa application is taken to include a non-judicially determined claim of family violence where a joint undertaking to a court has been made by the alleged victim and alleged perpetrator. There is no evidence in the form of a joint undertaking and therefore the applicant does not meet r.1.23(8).
A visa application is also taken to include a non-judicially determined claim of family violence where, among other things, the applicant presents evidence in accordance with r.1.24. This includes a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes in a legislative instrument (see IMMI 12/116).
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).
The Tribunal has seen a Form 1410 Statutory Declaration for family violence claim signed by the applicant and dated 10 September 2017. The declaration alleges family violence committed by the sponsor, gives details of the alleged family violence experienced and states the impact that the alleged family violence has had on the applicant. The Tribunal accepts that the declaration complies with the evidentiary requirements of r.1.25.
The applicant is also required to provide two pieces of evidence under legislative instrument IMMI12/116. The first of these is a statutory declaration by [Psychologist A] dated 22 October 2017. [Psychologist A] did not state his qualifications or the basis upon which he was entitled to give his declaration. However, upon further research, it was discovered that he is a psychologist who is registered by AHPRA. The second piece of evidence is a statutory declaration by [Social Worker A] dated 30 November 2017. [Social Worker A] stated that he is a member of the Australian Association of Social Workers and gave his member number. A search of the relevant register revealed that [Social Worker A] is a social worker. Based on this information, the Tribunal accepts that the two declarants were eligible to complete their declarations. As such, it has considered [Psychologist A’s] declaration according to the requirements for a psychologist and [Social Worker A’s] declaration according to the requirements for a social worker under Schedule 1 of IMMI12/116.
[Psychologist A’s] declaration stated that he based his report on information provided as well as a clinical interview conducted on 25 July 2017. [Psychologist A] said that he recommended the applicant see her GP to get a referral and a mental health care plan to see a Vietnamese speaking psychologist. In pre-hearing submissions dated 16 September 2021, the applicant’s representative stated that the applicant has not received any counselling and/or psychological treatments for the last three years and that there will be no further documentary evidence submitted in relation to her family violence claims. At hearing, the Tribunal asked the applicant how long the session with the psychologist was, and she replied that it took about one-to-two hours. When asked about follow-up from this session, the applicant said that she had seen her GP but had not otherwise engaged anyone.
[Social Worker A’s] declaration stated that the applicant was referred to him by her present representative in order to assess whether she was a survivor of relevant family violence under the Migration Regulations. [Social Worker A] said that his assessment was based upon an extended interview and assessment with the applicant on 17 July 2017 in which an interpreter participated. [Social Worker A] said that he referred the applicant to the [Community Organisation 1] for support and counselling. At hearing, the applicant said that she did not remember how long the session with the social worker took, but that it was probably around two hours. The Tribunal asked whether she had taken up the referral from the social worker, and she said she had approached the [Community Organisation 1] for support. When the Tribunal asked if she had any counselling, she replied no.
The Tribunal told the applicant of its concerns over the two pieces of evidence:
·In the case of the psychologist’s report, that it was produced after only one meeting of one-to-two hours and the psychologist made a recommendation to refer her on to another psychologist who spoke Vietnamese but the applicant only visited her GP and did not engage additional psychologists;
·In the case of the social worker’s assessment, that it was likewise produced after only one meeting of probably two hours and that while there was a referral to other supports these supports were not apparently taken up.
The Tribunal put to the applicant that, as a result, it was concerned that [Psychologist A] had not “treated” her while performing the duties of a psychologist as was required under the first column of Schedule 1 of IMMI12/116 when dealing with evidence from psychologists. Likewise, it put to her its concerns that [Social Worker A] had not “provided counselling or assistance” to her while performing the duties of a social worker under that Schedule. When asked for her response, the applicant told the Tribunal that she had nothing to say.
Later in the hearing, the applicant’s representative conceded to the Tribunal that she accepted that the applicant did not seek treatment based on the two pieces of evidence. She said she could try to access evidence about the applicant’s aforementioned interactions with her GP and the [Community Organisation 1] and would ask for 28 days in order to do so, although she also admitted that she did not think it would move the Tribunal to a favourable outcome. The Tribunal told her that, given the fact that the request was for information that already existed or could be generated from information that already existed, it would allow 14 days or until 4 October 2021.
On 4 October 2021, the applicant’s representative sent an email to the Tribunal which relevantly provided as follows:
[The applicant] was given 14 days to provide post hearing submissions, which is due today. I am writing to request a 14 days extension of time.
I have received copy of Mental Health Plan for [the applicant] in relation to her family violence claim and have just received over the weekend [the applicant’s] statement in Vietnamese comprise of 5 pages in length setting out details of her effort in obtaining treatments as recommended by the social worker and the psychologist.
I would like a couple of days to prepare written submissions in relation to the documents and 14 days to obtain an English translation of [the applicant’s] Statements.
The Tribunal responded via a lengthy letter of 5 October 2021. Its contents do not need to be repeated here. It suffices to say that the Tribunal considered that the representative’s email of 4 October 2021:
·did not suggest that any additional evidence will be provided that is capable of satisfying the evidentiary requirements of IMMI 12/116 and the Migration Regulations;
·did not give a reason why the materials provided by the applicant were given so late and needed 14 days for translation, and
·did not make it clear why a two-day extension was needed for further submissions.
Later in the day on 5 October 2021, the applicant’s representative sent a further email that relevantly stated as follows:
I would like to ask the Member to allow me until 4pm tomorrow to make submissions. I was waiting for [the applicant] to write her statements before making the submission in relation to her family violence claims. Thus, I could not complete the submissions prior to 4th October.
I intend to make submissions to the Member that a direction that the applicant meets 801.221(6)(b) is a permitted direction and that [the applicant] seeks this direction. This is my main submission and the submission in relation to [the applicant’s] family violence claims would be an additional submission to answer the enquires what [the applicant] did after she had the consultations with the social worker and the psychologist.
I confirm that [the applicant’s] statements only set out her efforts in obtaining treatment, not that she was treated. She did not receive counselling from [Community Organisation 1]. There has [sic] been interactions with her doctor in relation to her family violence by evidence of the existence of the Mental Health Plan. However, [the applicant] did not see the psychologist who was referred to in the Mental Health Plan and this is explained in her statements which I was seeking the extension of time to obtain the English translation.
In my pre-hearing submissions of 16 September 2021, when indicating that there will not be any further documentary evidence to be submitted in relation to [the applicant’s] family violence claims, I was thinking about documentary evidence in relation to [the applicant’s] having had counselling post Departmental decision, which [the applicant] said there was none.
In response, the Tribunal agreed to the extension of the due date for providing information so that the information was due at 4:00pm on 6 October 2021.
On 6 October 2021, the applicant’s representative sent an email that attached a letter of submissions of the same date. These submissions addressed the legal issue of whether the Tribunal could remit the matter with a direction that the applicant meets cl.801.221(6)(b). These submissions are dealt with below under separate heading. There were no submissions made or information given in relation to the applicant’s claim of family violence, although the Tribunal notes that the representative foreshadowed in her covering email that some submissions were going to be provided.
On 7 October 2021, the applicant’s representative sent an email that attached the aforementioned mental health plan (titled “GP Mental Health Treatment Plan”) completed by [Doctor A] and dated 5 February 2018, along with a statement from the applicant dated 26 September 2021 and a series of seven screenshots of Google Translate with some annotations. The email explained that these screenshots were of the applicant’s statement. The email also relevantly provided as follows:
Please ask the Member in event that the Member is not inclined to remit the matter back to the Department, unless the Member is satisfied with the English translation by Google Translate, I would like an extension of time of 14 days to obtain a proper translation of [the applicant’s] statement with a NAATI qualified translator.
On 11 October 2021, the Tribunal replied to the above email, refusing the requested 14 days but allowing seven days to provide a translation of the statement by a NAATI-qualified translator.
On 19 October 2021 at 12:15am, the applicant’s representative provided a translation of the statement by someone who purported to be accredited by NAATI. Although this document was provided after the due date, the Tribunal has nonetheless received it before it has made its decision and so, on this basis, it has been considered by it.
The applicant’s statement describes the following events taking place after her treatment by [Psychologist A] and [Social Worker A]:
·After seeing the social worker [[Social Worker A]], the applicant went to the [name] [which the Tribunal takes to mean [Community Organisation 1]]. She spoke to a woman who asked about her situation in the open and not in a private room. The lady gave the applicant five telephone numbers, including one for [Ms A], for her to call when needed. The applicant claimed that the woman at the association did not give her any advice, help or way of dealing with the problem.
·The applicant attempted to call [Ms A] the next day at around noon but no one picked up or rang back. The same thing happened the next day in the afternoon. She did not make any additional phone calls.
·The psychologist whom the applicant saw [[Psychologist A]] advised her to see a family doctor to make an appointment to see a Vietnamese psychologist. She said that there were not many Vietnamese psychologist working in the [Suburb 1] area. She was referred by the doctor to someone called “[Psychologist B]” and [Psychologist B’s] telephone number was given but she was unable to make contact. She could not find a way to contact [Psychologist B] by Google search.
·The applicant tried making an appointment with another psychologist to know how serious her condition was, but was unable to book an appointment or obtain contact details over the internet.
·The applicant said that she could not see a psychologist who was unable to speak Vietnamese as she would not be able to understand well or express what she would need to say in English.
·The applicant spoke about difficulties in seeing practitioners, including the $300-an-hour cost of seeing a psychologist and fears of people’s reactions to her seeing a psychologist.
Although the applicant’s statement then spoke about her current family situation, the Tribunal considers this evidence as not relevant to the issue of the evidentiary requirements for a non-judicially determined claim of family violence. It may, however, be relevant when dealing with other matters such as a request for ministerial intervention (see below).
The Tribunal has considered the evidence in front of it relating to family violence, including the testimony of the applicant at hearing and the evidence given post-hearing. It has also considered previous case law on this matter, including the Federal Circuit Court case of Dang v MIBP where the Court found that it was correct for the Tribunal (differently constituted) to find that neither the psychologist or social worker in those cases had treated or counselled the applicant.[3] The Court in that case quoted with approval the following passage from the Tribunal’s decision:
… for a statutory declaration by a psychologist or a social worker to meet the requirements of IMMI 12/116 the relationship between the Applicant and the psychologist or social worker must have been essentially a therapeutic one… .[4]
[emphasis added]
[3] Dang v MIBP [2016] FCCA 1426 [31] (Judge McNab).
[4] Ibid [28].
At hearing, the Tribunal read out the definition of “therapeutic” according to the Macquarie Dictionary – “relating to the treating or curing of disease; curative”[5] – and asked for the applicant’s comment. None was forthcoming.
[5] Macquarie Dictionary, (online at 20 September 2021) ‘therapeutic’ (def 1).
The Tribunal has had regard to the facts of the present matter. It finds that the applicant attended one session each of the psychologist and social worker for a maximum of two hours. It finds that referrals and recommendations were made at those sessions. It finds that the applicant may have attempted to engage further practitioners, including from the [Community Organisation 1] or similar body and a psychologist in [Suburb 1]. However, it finds that she appears by her own evidence including a statement provided after hearing to have made only preliminary enquiries about these and there was no follow-up that could amount to her entering into a therapeutic relationship with a person eligible under Schedule 1 of IMMI 12/116.
Having made these findings, the Tribunal finds that the applicant was not in a therapeutic relationship with [Psychologist A], [Social Worker A] or any other person having regard to the definition of “therapeutic”. In coming to this finding, it finds that there is no evidence that either of the two listed practitioners offered any treatment or counselling/assistance (as the case may be) during the sessions. As [Psychologist A] did not treat the applicant while performing the duties of a psychologist and [Social Worker A] did not provide counselling or assistance to the applicant while performing the duties of a social worker, the Tribunal is not satisfied that the declarations completed by them meet the evidentiary requirements of Schedule 1 of legislative instrument IMMI12/116.
A last issue involves the Mental Health Treatment Plan that was provided in the email of the applicant’s representative 7 October 2021 and whether this document satisfies the evidentiary requirements of Schedule 1 of legislative instrument IMMI 12/116. The treatment plan was divided into two main sections – the first, a “Patient Assessment” and the second, a “Mental Health Treatment Plan”. The Patient Assessment detailed problems and diagnoses, as well as medications, part history, mental health history/treatment, family history, social history, allergies, personal history/lifestyle issues, mental status examination and risk assessment. Under “mental health history/treatment”, in response to the question “Has the person ever received specialist mental health care?”, [Doctor A] has written “No”. The treatment plan also stated the applicant’s “Main Problems/Diagnosis” as being “post traumatic stress disorder”. It listed the “Other Mental Health Professionals Involved in Patient Care” as being [Psychologist B] and gave the physical address of her practice and contact number.
The second part of the treatment plan, being the “Mental Health Treatment Plan”, listed the goals as well as actions and tasks that correspond with the problem/diagnosis. In the case of both of the applicant’s problems/diagnoses, being “Mixed anxiety and depression” and “Adjustment disorder”, the goals are “reduce symptoms” and “improve functioning” and the actions/tasks are “referal [sic] to see psychologist”, “counselling”, “family support” and “behavioural psychotherapy”. In the relevant part dealing with patient consent, although the date was recorded neither the applicant nor [Doctor A] has provided their signature.
The Tribunal has considered the contents of the treatment plan and has assessed whether it is capable of satisfying the evidentiary requirements of IMMI 12/116 and the Migration Regulations. It considers that, as the document was authored by a general practitioner, it would fall to be decided under the part of Schedule 1 devoted to a registered medical practitioner performing the duties of a medical practitioner. Although the treatment plan identifies the applicant and may therefore be said to identify the alleged victim, it does not detail any physical injuries nor does it detail the treatment for mental health that is consistent with the claimed family violence. In relation to whether the treatment plan details the treatment for mental health, the Tribunal specifically notes that [Doctor A] answered “No” to the question of whether the applicant has ever received specialist mental health care. Moreover, while [Doctor A] lists Ms [Psychologist B] as being a mental health professional involved in the applicant’s care, by the applicant’s own admission [Psychologist B] had yet to be (and was not) involved in her treatment.
Based on this evidence, the Tribunal does not consider that the treatment plan completed by [Doctor A] satisfies the evidentiary requirements under Schedule 1 of legislative instrument IMMI 12/116.
Therefore, the evidence presented does not meet the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23.
Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.801.221(6)(c)(i) 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.
PERMISSABILITY OF REMITTING MATTER ON CL.801.221(6)(b)
In her pre-hearing submissions, the applicant’s representative stated that, because the Department did not assess the applicant’s family violence claims, she requested the Tribunal not consider these claims either. At hearing, this submission was reiterated by the applicant’s representative, who said to the Tribunal that, if it were able to remit to the Department based on cl.801.221(6)(b), then the decision would not be considered as “refused”, the applicant could withdraw the present visa application, and she would not be subject to the s.48 bar and could then apply for a further onshore partner visa with her current partner. In this regard, the Tribunal notes that evidence was submitted showing that she had given birth to a son whom she claims is an Australian citizen although the Tribunal has not confirmed that he is an Australian citizen. The Tribunal remarked at hearing that this seemed to be an “artificial” procedure but allowed further time for the applicant’s representative to provide written legal submissions.
As above, on 6 October 2021, the applicant’s representative provided submissions on this point. The submissions argued that the direction to remit on cl.801.221(6)(b) was a permitted direction under the Act and Regulations in light of s.349 in relation to the Tribunal’s powers on review and r.4.15(1) in relation to the Tribunal’s power to give directions. To illustrate the point, she referred to three decisions – MIAC v Dhanoa [2009] FCAFC 153 (Dhanoa), Luwandri v MICMSMA [2020] FCCA 3003 (Luwandri) and Mekonen v MIBP [2016] FCCA 2715 (Mekonen).
Dhanoa
The applicant’s representative submitted that the Full Federal Court’s interpretation and analyses of s.349 and r.4.15 in Dhanoa supported her submission that the Tribunal had the power to remit the applicant’s matter with the direction that she meets cl.801.221(6)(b) without having to consider whether she also meets cl.801.221(6)(c)(i). Unfortunately, this submission was not further developed.
As understood by the Tribunal, Dhanoa stands firstly for the proposition that s.349(2)(c) of the Migration Act does not vest in the Tribunal a general power of remittal. Further, the majority in Dhanoa found that the Tribunal had no power to remit the matter to the minister for reconsideration where there was not a permissible direction or recommendation – and in that case, the Tribunal could not remit the matter for reconsideration with the direction that the respondent had achieved the required IELTS score pursuant to the relevant item in Part 3 of Schedule 6A of the then-version of the Regulations.
While Dhanoa usefully sets out some of the principles surrounding s.349 and r.4.15 regarding the Tribunal’s powers and permissible directions, the Tribunal does not consider that it supports the representative’s submissions.
Mekonen
The applicant’s representative dealt next with the Federal Circuit Court’s decision in Mekonen, which concerned cl.600.223(2)(b) relating to Schedule 3 criteria 3001, 3003, 3004 and 3005. The representative stated that the appellant in that matter argued that the Tribunal should have exercised power to remit the visa application with the direction that he met criterion 3001 (he had been found by the Tribunal not to satisfy criterion 3004). The representative stated that “[u]nderstandably, this argument failed, as the direction the applicant sought was not possible, applicant needed to satisfy all components on cl.600.223(2)(b)”. She went on to say that the Court in Mekonen analysed that the appellant needed to satisfy all of the criteria in cl.600.223(2)(b), and that this required assessment of multiple components or requirements such that a direction that the appellant met cl.600.223(2)(b) could not be made unless the appellant met both criteria 3001 and 3004.
The representative appeared to imply that Mekonen was authority that the Tribunal was free to make a direction that the applicant met cl.820.221(6)(b). Although it was not quoted or referred to in the submissions, the Tribunal notes that the Court at [71] stated as follows:
The Tribunal did have the power to remit the applicant’s case to the delegate. However, in the circumstances it was not compelled to do so.
The Court’s finding here would appear to accord with the representative’s submission that the Tribunal was free to make such a direction.
Luwandri
Luwandri was said to be similar to the present matter in that the appellant sought for his visa application to be remitted to the Department, but with a direction for him to be permitted to withdraw and relodge his application. The applicant’s representative sought to distinguish the two matters as, in Luwandri, the direction sought was not a direction “that in any way directs that the applicant must be taken to have satisfied a specified criterion”. It was submitted that the direction the applicant was seeking in the current matter, in contrast, directs the Department that she is taken to have satisfied a specified criterion, being cl.801.221(6)(b) – the specific criterion on which the applicant’s visa application was refused.
The Tribunal has considered the submissions of the applicant’s representative and has had regard to the accompanying decisions. What these submissions seem to reinforce, however, is that the decision about whether to confine consideration to one criterion of a subclause of a clause is a decision for the Tribunal to make. The Tribunal’s comment at hearing about the artificiality of the proposed course of action was not to deny that such a course of action may be permitted – after all, the powers of the Tribunal, although qualified, are wide. However, it considers that, having been confronted with evidence that the applicant is not able to satisfy cl.801.221(6)(c)(i), and with there being no question of the applicant being on notice of the family violence requirements being an issue from at least the time of the delegate’s decision, the Tribunal should proceed to decide on that criterion. In short, the Tribunal is empowered to look at all the subclauses under that clause, including all of the cumulative requirements of cl.801.221(6)(a), (b) and (c)(i) and this is what it has done. Any consideration of the applicant’s present circumstances, including her claim that she has an Australian-citizen son to an Australian-citizen partner, should be by way of another means – including ministerial intervention, which is dealt with below.
MINISTERIAL INTERVENTION
At hearing, the applicant’s representative indicated that the applicant would like to seek ministerial intervention. This intention was confirmed in the representative’s post-hearing email of 7 October 2021 when she relevantly stated as follows:
[The applicant’s] third option is the request for the Member to consider referring her matter for ministerial intervention. [The applicant’s] statements contain information that would assist the Member in this aspect.
In this regard, the Tribunal has considered the contents of the applicant’s statement of
26 September 2021 as well as other evidence such as her testimony at hearing. This statement reveals that the applicant has a child of less-than-two years and a husband with whom she has built up a business. In testimony at hearing, the applicant told the Tribunal that her partner and child are both Australian citizens. The Tribunal notes that a birth certificate was given showing the applicant as the mother of a child born in October 2019. The applicant in her statement talked about not wanting her child to be deprived of the love of both parents. She spoke about her parents getting separated when she was young and that the “wound has been engraved deeply in [her] memory”. She said that she does not want her child to go through what she has gone through and that she wishes for a peaceful life. She prayed for the Tribunal to give her family a chance so that they do not have to live apart.Section 351 of the Act provides that the minister can substitute for a decision of a review tribunal a decision that is more favourable to a person if the minister thinks it is in the public interest to do so. The Tribunal specifically notes that cases having one or more unique or exceptional circumstances may be referred to the minister for possible consideration of the use of his intervention powers.
The Tribunal has considered the minister’s guidelines when coming to a decision about whether to make a referral for intervention under s.351, including those relating to “unique or exceptional circumstances”. It acknowledges the seriousness of having a family with a young child separate during a period where one of the family awaits consideration of their visa application offshore and accepts that these circumstances may form the basis for finding that there are unique or exceptional circumstances. However, it considers that it does not have sufficient evidence to show that the applicant’s partner and child are Australian citizens and therefore that the family unit is an Australian family unit, or that the applicant’s partner would not be able to relocate for part or all of the period during which the applicant will be offshore.
Accordingly, the Tribunal will not be referring the matter to the minister, although it reminds the applicant that it is open to her to make her own request.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa
David Crawshay
MemberATTACHMENT – 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.
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