1822344 (Migration)

[2022] AATA 4235

1822344 (Migration) [2022] AATA 4235 (21 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Yi Wu (MARN: 0961171)

CASE NUMBER:  1822344

MEMBER:Donna Petrovich

DATE:21 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:

·cl 100.221(4)(b) of Schedule 2 to the Regulations and

·cl 100.221(4)(c) of Schedule 2 to the Regulations.

Statement made on 21 September 2022 at 1:59pm

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – relationship ceased – genuine and continuing relationship before family violence – non-judicially determined family violence – independent expert found psychological abuse – threats to divorce – physical violence – mental health issues – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 820.221; rr 1.15, 1.21 – 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 Home Affairs on 19 July 2018 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 31 March 2015 on the basis of his relationship with his sponsor, [Partner A]. 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 (Cth) (the Regulations).

3. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl 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, or a member of the family unit, has suffered family violence committed by the sponsor: cl 100.221(4)(b), (c)(i). The applicant claims this occurred in this case.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 100.221.  The delegate was not satisfied that the applicant was the spouse or de-facto partner of the sponsor, as defined under Section 5F and 5CB of the Act respectively, prior to the relationship ceasing.

5. As the delegate was not convinced that the couple were in a spouse or de facto relationship at the time of the cessation of the relationship, the Department concluded that cl. 100.221(4)(b) was not met by the applicant.  Consequently, the delegate determined that they were not required to consider the family violence claims any further.

6. The applicant appeared before the Tribunal on 18 July 2022 to give evidence and present arguments.

7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. In the present case, the applicant claims the relationship with [Partner A], the visa sponsor, has ceased, and that he has been the victim of family violence.

10. The Tribunal heard at the hearing on 18 July 2022 that the applicant and sponsor met in 2014 in Beijing, after being introduced by a cousin.  They dated for a period of time before they registered their marriage in 2015.  The Tribunal heard that the applicant had a stable job, social support, a home in Beijing and had a preference to remain in Beijing.  However, the sponsor wanted them to re-locate as a couple to Australia where she was living as she was of the view that this offered a more prosperous future for them. This was initially an issue over which they argued, but generally they got on very well while they were in China.

11. The applicant agreed to relocate to Australia and transferred assets after selling his property.  The couple purchased a property together which was solely in the sponsor’s name.  It was explained by the applicant that he indirectly transferred his money to family and friends to be forwarded to the sponsor.  Due to the Chinese Government’s financial investment policies, he was unable to purchase a property or transfer funds directly to the sponsor without incurring significant fees and taxes.

12. The applicant said he felt he had no reason to distrust the sponsor and contributed a substantial amount to the residence where they lived together. 

13. The applicant told the Tribunal that shortly after his arrival in Australia, the sponsor’s attitude towards him changed significantly.  Due to his poor English, he was completely reliant on the sponsor in relation to most aspects of his life in Australia.  The sponsor monitored his spending from his own account, and if balance amounts exceeded $250.00 the sponsor would transfer funds out of his account into her own account.  The sponsor evaluated the hours the applicant worked and what was deposited into his account.  She also monitored his shower times and water usage by making him shower over a bucket. The sponsor became psychologically abusive and critical, and the applicant started to doubt his self- worth and ability. In 2016, he became so distressed that he was experiencing suicidal thoughts because of feeling helpless.  The applicant feared the threats that she would throw him out, that he would be homeless and without funds in Australia.

14. He experienced a decrease in his overall mental health.  He had trouble sleeping, concentrating, and was experiencing panic attacks.  From April 2017, he started sleeping in another room.  By this time, the sponsor had become physically abusive. She would pour water on him while he slept, hit him and she broke his laptop. This abuse occurred between April 2017 and October 2017.  The applicant pushed his bed up against the door to prevent the sponsor from entering and attacking him.

15. The applicant told the Tribunal that the relationship ended between 20 October 2017 and 21 October 2017, when he moved out of their shared home.  His departure was prompted by the police attending his property following a request from the sponsor.

16. Based on the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased.

17. The remaining 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.

18. Under reg 1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court.  In the alternative, 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 reg 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: reg 1.23(3), (5), (7), (12), (14).

19. In the present case, the applicant is seeking establish family violence based on a non-judicially determined claim of family violence.

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

20. Under reg 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 is provided in accordance with reg 1.24.

21. The applicant in this case is seeking to rely on evidence referred to in reg 1.24 to establish his claim for non-judicially determined family violence.  A statutory declaration under reg 1.25, being form 1410 – Statutory declaration for family violence claim signed and dated [in] February 2018 by the applicant, claims that he has been subjected to family violence.  This form has been provided to the Tribunal.  The statutory declaration of the applicant detailing the alleged family violence he experienced whist in a relationship with the sponsor satisfies the requirements of reg. 1.25(1) and (2) of the Regulations. 

22. A statutory declaration under reg 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: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).

23. The applicant provided the Tribunal with a form 1410 Statutory Declaration for family violence claim, signed by the applicant [in] February 2018. Therefore, the evidence presented meets the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23.

    Has the applicant suffered family violence?

24. The Tribunal referred the claim to an independent expert on the basis that a non-judicially determined claim of family violence was made and that it was appropriate for the Tribunal to refer the matter to an independent expert.

25. The independent expert found that the alleged psychological abuse was actual towards the alleged victim (the applicant) and had caused the alleged victim to reasonably fear for, or to be reasonably apprehensive about his own wellbeing or safety.

26. The applicant claimed that shortly after arriving in Australia, the sponsor’s attitude toward him changed.  When they were in China, she was warm and caring, but cold and intimidating when in Australia.  The sponsor became increasingly belittling towards the applicant.  Any attempt to defend himself resulted in further abuse and the threat of becoming homeless.  The sponsor made threats to kick him out of the house and to divorce him.  He had hoped that they would reconcile, and that the relationship would return to its former harmony.  But as the relationship further deteriorated, he felt increasingly helpless.  He recognised that the relationship was not repairable.  He remained living in the shared residence as he had limited financial means to leave.  The independent expert has formed the opinion that the circumstances and conduct described by the applicant constitutes pathological abuse, and that this conduct caused [the applicant] (the applicant) to reasonably fear for, or to be reasonably apprehensive about his own wellbeing or safety.

27. The applicant explained to the independent expert that the sponsor became physically aggressive and violent after he relocated to another room in their shared home. Specifically, he alleged that on various occasions the sponsor entered his room, shone her phone in his face, hit him, and tipped water on his face.  He also alleged she damaged his laptop and her laptop in an argument that caused the police to attend.

28. He stated that he would push his bed up against the door to prevent the sponsor from entering the room. He explained that the sponsor’s physical aggression caused him to feel scared.  The applicant was concerned that her conduct may escalate and that she may kill him.  He described ongoing physical abuse, and symptoms including nightmares, tension, nervousness, trouble concentrating and reduced appetite.  He described feeling helpless and unaware of where to go for help.  In the opinion of the independent expert, the described conduct constitutes relevant family violence and caused [the applicant] to reasonably fear for, or to be reasonably apprehensive about his safety.

29. The applicant claimed that the sponsor was financially abusive to him during the relationship.  The independent expert acknowledged that the applicant had genuine feelings of disappointment, resentment and mistreatment regarding the financial circumstances of the relationship. The applicant emphasised that he lost a considerable amount of money due to the relationship breakdown.  [Details deleted.] The independent expert found that the conduct did not appear to cause him to reasonably fear for his own wellbeing or safety. Therefore, it was the independent expert’s opinion that the conduct described by the applicant did not constitute relevant family violence in relation to alleged financial abuse.

30. However, based on the assessed claims of psychological and physical abuse the independent expert considered that the applicant did meet the criteria as a victim of family violence as defined by the Migration Regulations (1994).

31. Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of reg 1.23 that the applicant had suffered relevant family violence. Consequently, in accordance with that regulation, the Tribunal sought the opinion of an independent expert. On 17 August 2022 the independent expert provided an opinion that the applicant had suffered relevant family violence.

32. The applicant described ongoing physiological symptoms associated with alleged physical abuse including nightmares, tension, nervousness, trouble concentrating and reduced appetite. He described feeling helpless and described being unaware of where to go for help.

33. The applicant reported that he continued to experience continued ongoing suicidal ideation following the relationship break down, due to internalised feelings of worthlessness associated with alleged psychological abuse perpetrated by the sponsor and the shame associated with the breakdown of the relationship.  He initially sought help in early 2018 from a General Practitioner and subsequently a mental health counsellor.  Although these sessions were helpful, he did not continue as the out- of -pocket expenses were too great for him to bear even though he reported that he looked forward to these sessions. The applicant continues to experience ongoing symptoms of anxiety, and sometimes experiences panic.

34. The Tribunal is satisfied that the opinion is made by an independent expert who is authorised by the Regulations and 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 reg 1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.

35. 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. The independent expert concluded that the described incidents of psychological and physical abuse allegedly perpetrated by the sponsor constitute relevant family violence, in that the alleged conduct caused the applicant to reasonably fear form or to be reasonably apprehensive about, his own wellbeing or safety.  However, the independent expert found that the described examples of alleged financial abuse appear to be representative of relational discord and differing opinions regarding financial management/control during the relationship breakdown.  The independent expert acknowledged the applicant’s feelings of disappointment, resentment and mistreatment regarding the financial circumstance, but that the described conduct did not appear to cause him to reasonably fear for, or to be reasonably apprehensive about his own wellbeing or safety.

36. Based on the assessed claims of psychological and physical abuse, the independent expert considered that the applicant ([named]) meets the criteria as a victim of family violence as defined by the Migration Regulations 1994.

37. The independent expert has concluded that family violence has occurred, and the majority of the family violence occurred during the relationship as detailed in the report from the independent expert.  

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

39. 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 100.221(4)(b) and (c).

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

    decision

41. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:

    ·cl 100.221(4)(b) of Schedule 2 to the Regulations and

    ·cl 100.221(4)(c) of Schedule 2 to the Regulations.

    Donna Petrovich
    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.