1810989 (Migration)

[2021] AATA 707

1810989 (Migration) [2021] AATA 707 (26 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810989

MEMBER:Kira Raif

DATE:26 February 2021

PLACE OF DECISION:  Sydney

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

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

Statement made on 26 February 2021 at 11:47am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased – non-judicially determined claim of family violence – statutory declarations by applicant and specified professionals – claim made only after withdrawal of sponsorship – opinion of independent expert – information decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 359A
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 1.25; Schedule 2, cl 801.221

CASE
El Jejieh v MICMSMA [2020] FCA 1103

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 6 April 2018 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 27 September 2013 on the basis of his relationship with his sponsor. 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 the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 9 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses nominated by the applicant. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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). 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).

5. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and he has been the victim of family violence.

6. 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. The violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).

7. 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?

8. 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 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes.

9. 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).

10. The applicant presented to the Tribunal statutory declarations from a social worker, a medical report and a declaration from a registered psychologist, as well as his own declarations. The declarations identify the applicant and the person who is alleged to have committed the violence, state the basis for the opinion and express the view that the applicant suffered family violence. The applicant presented other evidence to the Tribunal, including evidence of the relationship with the sponsor and a number of declarations from third parties. The Tribunal acknowledges that evidence.

11. 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?

12. The Tribunal has considered the applicant’s evidence. The applicant made the application on the basis that he was in a genuine relationship with the sponsor. As noted above, the sponsor informed the Tribunal that the relationship broke down irretrievably. The Tribunal wrote to the applicant pursuant to s. 359A of the Act. In response the applicant stated that he suffered family violence.

13. In oral evidence the applicant told the Tribunal that his partner had been opportunistic and shouted at him. She got upset without a good reason and often kicked him out of the bedroom. She often threatened that she would cancel the visa. Later on, he found out that she had another relationship, which made him feel desperate and disappointed and he had to seek psychological counselling. He also raised with the sponsor the issue of having children but she refused to talk about it and threatened him and he considered it to be a betrayal. The applicant claims the sponsor was jealous for no reason and wanted him at home all the time. He felt she was manipulating and controlling him and isolating him from others. The applicant states that as a result of the sponsor’s conduct and threats, he felt fearful. The applicant said the problems started in early 2018 or before then and got worse throughout 2018. The sponsor left him in March 2019.

14. The Tribunal has also had regard to the evidence of the two witnesses who spoke about the applicant’s relationship with the sponsor and what they perceived to have been family violence occurring during the relationship.

15. The Tribunal is not satisfied the applicant felt fearful or apprehensive about his safety or well-being. It is also of considerable concern of the Tribunal that the applicant only made a claim of family violence in response to the Tribunal’s letter and following the withdrawal of sponsorship. Until that time, the applicant sought to rely on his relationship with the sponsor and had not informed the Tribunal of the relationship ceasing. The timing of this claim suggests that the claim is opportunistic. Having lost the opportunity to obtain the visa on the basis of the relationship, the applicant decided to seek the visa on an alternative basis.

16. 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 that regulation, the Tribunal sought the opinion of an independent expert. On 26 February 2021 the independent expert provided an opinion that 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.

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

18. The applicant provided extensive evidence of the relationship in support of his temporary and permanent partner applications. The relationship had been assessed as genuine previously and the applicant was granted the temporary visa. The delegate found that there was insufficient evidence to show that at the time of the decision the couple were in a genuine relationship and that there was insufficient evidence that the relationship had ‘progressed’ since the grant of the temporary visa. However, there is no statutory requirement for any progression of the relationship. Either there is a genuine spousal relationship or there is not, whether there is any progression from the grant of the temporary visa to the consideration of the permanent application. The Tribunal acknowledges the evidence addressing the various aspects of the relationship, including joint financial undertakings, joint social activities, representation of the relationship to others. The Tribunal acknowledges that the presented evidence has been assessed as being sufficient for the purpose of the temporary visa. The Tribunal is also mindful of the reasoning in El Jejieh v MICMSMA [2020] FCA 1103 which is binding on the Tribunal.

19. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for r.1.22.

    Conclusion

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

    DECISION

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

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

    Kira Raif
    Senior Member