1818444 (Migration)

[2019] AATA 2768

1818444 (Migration) [2019] AATA 2768 (30 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818444

MEMBER:Justine Clarke

DATE:30 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl.820.221(3) of Schedule 2 to the Regulations

Statement made on 30 April 2019 at 12:19pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – time of decision requirement and alternative criteria – relationship ceased – family violence victim – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A

Migration Regulations 1994, Schedule 2, cls 820.211, 820.221(3), rr 1.21, 1.22, 1.23, 1.24, 1.25

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 13 June 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant [is] [an age] year old national of Vietnam.   

3. On 16 February 2017, the applicant applied for the visa on the basis of her relationship with her [sponsor].

4. At the time of application, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. The primary criteria include cl.820.211 and 820.221 which require that, at the time of application and decision, 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.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.

5. The applicant provided the Tribunal with a copy of the primary decision. The delegate was satisfied that, at the time of application on 16 February 2017, the applicant and the then sponsor were in a de facto relationship as defined in s.5CB of the Act and therefore met the requirement in cl.820.211(2). However, the delegate refused the visa because the delegate was not satisfied that the applicant met the time of decision requirement in cl.820.211(1)(a) and was not satisfied that the applicant met the alternative criteria in cl.820.221(1)(b).

6. On 25 June 2018, the applicant applied to the Tribunal for review of the primary decision.

7. On 7 December 2018, the Tribunal wrote a letter to the applicant, by way of her representative, pursuant to s.359(2) and purportedly pursuant to s.359A of the Act. With respect to s.359A, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reason, or a part of the reason, for affirming the decision under review. The letter stated that information on the Department’s file indicates that the applicant’s relationship with the sponsoring partner has ended and that the sponsoring partner has withdrawn the sponsorship. With respect to s.359(2), the Tribunal informed the applicant that if she was no longer in a relationship with the sponsoring partner then there were a number of exceptions under which she could be granted the Partner visa. The letter listed exceptions relating to the death of the sponsoring partner, family violence and certain court orders or responsibilities in relation to children. The letter invited her to provide information that she believes may be relevant to the exceptions. The letter stated that, if the comments or response and the information were not provided in writing by 21 December 2018 or an extension of time not sought by that time, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response or the information.

8. On 21 December 2018, within the requested timeframe, the applicant’s representative responded stating that the applicant had instructed that the relationship had ended due to family violence which was ongoing throughout the relationship.

9. On 29 March 2019, the applicant appeared before the Tribunal by video-link from the Tribunal in [City 1] to give evidence and present arguments. The Tribunal also received oral evidence from her cousin [who] also attended the hearing in person in [City 1]. The applicant was represented in relation to the review by her registered migration agent and the representative also attended the Tribunal hearing in [City 1].

10. Half an hour prior to the commencement of the hearing, the representative filed a statutory declaration made by the applicant and a statutory declaration made by a psychologist with the Tribunal.

11. At the conclusion of the hearing, the Tribunal provided the applicant with an opportunity to submit any further documents in support of her case by 30 April 2019.

12. On 30 April 2019, the applicant provided further documentary evidence in support of her case.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The applicant claims the relationship with [the] visa sponsor, has ceased, and she has been the victim of family violence. The issue is whether the applicant meets cl.820.221(3)(a) and (b) of Schedule 2 to the Regulations.

    Was the applicant the de facto partner of the sponsoring partner?

15. On the basis of the evidence, including the applicant’s detailed oral evidence of the inception and development of her relationship with the sponsor and their life together and the Tribunal’s consideration of corroborating evidence (for example, a copy of a civil partnership certificate (Tribunal file f.86)), the Tribunal is satisfied the applicant and the sponsor were in a de facto partner relationship and that this relationship has ceased. The issue that arises on the evidence is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

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

16. 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).

17. The applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence. Under r.1.23, a visa application is taken to include a non-judicially determined claim of family violence either where 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.

18. The applicant 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).

19. The applicant has submitted the following documents to the Tribunal in support of her claim of family violence:

    ·written submissions dated 29 April 2019;

    ·photographs of bruising said to be on the applicant’s body from an incident of physical violence in February 2017;

    ·an email from [a] student counsellor of [a] University dated 15 February 2017 following the applicant’s consultation with her following an incident of physical violence;

    ·her statutory declaration (Form 1040) made on 28 March 2019;

    ·a statutory declaration made by her psychologist [on] 12 March 2019;

    ·her statutory declaration (Form 1410) made on 24 April 2019; and

    ·a statutory declaration made by her social worker [on] 24 April 2019.

    Consideration of the applicant’s statutory declarations

20. 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).

21. Although the applicant has submitted two statutory declarations, the Tribunal has given greater weight to the latter declaration made on 24 April 2019 as it is made on the correct form and contains further detail.

22. The Tribunal finds that the applicant’s statutory declaration of 24 April 2019 meets the requirements of r.1.25(1) and (2).

    Consideration of evidence specified in the applicable legislative instrument

23. Legislative Instrument IMMI 12/116 specifies a minimum of two items of evidence from a list in the Schedule to the instrument and that not more than one of each type may be presented. Two of the items listed are:

    ·a statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim whole performing the duties of a psychologist; and

    ·a statutory declaration made by a member of the Australian Association of Social Workers or a person who is eligible to be a member of that Association, and in both cases, that declarant has provided counselling or assistance to the alleged victim while performing the duties of a social worker.

    Consideration of [the psychologist’s] statutory declaration

24. The legislative instrument requires that a registered psychologist’s statutory declaration state that, in their opinion, the alleged victim was subject to family violence; detail the reasons for that opinion; and identify the alleged perpetrator. The Tribunal finds that [the psychologist]’s statutory declaration of 12 March 2019 fulfils the requirements.

    Consideration of [the social worker]’s statutory declaration

25. The legislative instrument requires that a social worker’s statutory declaration state that, in their opinion, the alleged victim was subject to family violence; detail the reasons for that opinion; and identify the alleged perpetrator. The Tribunal finds that [the social worker]’s statutory declaration of 24 April 2019 fulfils the requirements.

    Conclusion

26. 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?

27. The applicant claims to have experienced family violence—specifically, verbal and psychological abuse (including a number of incidents of controlling behaviour), financial abuse and one incident of physical violence—committed by the sponsor during their relationship.

28. Having considered all of the evidence before it, including the applicant’s oral evidence given at the hearing (including periods where she shed tears) and in her statutory declarations, the oral evidence from the witness at the hearing and the evidence of the incident of physical violence in February 2017, 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.

29. 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.820.221(3).

30. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

31. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl.820.221(3) of Schedule 2 to the Regulations

    Justine Clarke
    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.