1825283 (Migration)

[2022] AATA 1782

1825283 (Migration) [2022] AATA 1782 (22 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825283

MEMBER:Margie Bourke

DATE:22 March 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) and (c) of Schedule 2 to the Regulations.

Statement made on 22 March 2022 at 3:22pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – relationship ceased and non-judicially determined claim of family violence – physical, psychological and financial abuse – statutory declaration and medical and psychological reports – inconsistent and unreliable evidence – opinion of independent expert must be taken as correct – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24(a), (b), 1.25 Schedule 2, cl 100.221(4)(b), (c)(i)

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 Home Affairs on 21 August 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 21 January 2014 on the basis of his relationship with his sponsor, [Ms 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 because the delegate found, based on the opinion of an independent expert, the applicant had not suffered relevant family violence.

5. The tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The tribunal had regard to the circumstances of the applicant. The tribunal had regard to the fact that over three years had elapsed since the applicant had applied for review of the Department’s decision, which is dated 21 August 2018. The tribunal had regard to the fact that the hearing would not involve an extensive amount of paperwork to be put to the applicant during the hearing. The tribunal had regard to the ongoing restrictions on the availability of in-person hearings, and considered further delay in waiting for an in-person hearing should be avoided. The tribunal had considered the review involved claims of family violence, and the specific claims made in the applicant’s statutory declarations and other material provided to the Department and the tribunal. The tribunal decided that although the issues involved were sensitive, the review if conducted by video would give the applicant a fair opportunity to give evidence and present arguments, and the tribunal would be able to conduct a fair and effective hearing by video and be able to properly assess the evidence before it. For all these reasons the tribunal considered it was an appropriate matter for the hearing to be conducted by way of video. The applicant was invited to attend the hearing by video, and the tribunal did not receive any objection to the hearing proceeding by way of video from the applicant or his representative.

6. The applicant appeared before the tribunal by video on 13 December 2021 to give evidence and present arguments. The tribunal also received oral evidence from a witness, [Mr B], who also attended by video. The tribunal hearing was conducted with the assistance of an interpreter in the English and Sinhalese interpreter

7. The applicant was represented in relation to the review. The representative attended the tribunal hearing by video.

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 [Ms A], the visa sponsor has ceased, and he has been the victim of family violence.

10. The tribunal is satisfied based on the documents in the Department file, and the evidence of the applicant, that the application for the partner visa was made on 27 January 2014, the applicant was granted a subclass 309 visa on 7 December 2014, and arrived in Australia in December 2014 is the holder of the subclass 309 visa. The tribunal is satisfied that the relationship broke down in 2016.

11. The tribunal has considered the information provided by the applicant to the Department prior to the breakdown of the relationship. In addition to the documents in support of the application for the visa made in January 2014, the applicant provided information and evidence subsequent to his arrival in Australia. These documents included statutory declarations, financial documents, a joint history of rental payments by the applicant and sponsor, correspondence to the applicant and / or sponsor from Centrelink, VicRoads and the Council which confirmed they resided together, and records of parent teacher interviews with the sponsor’s children. The tribunal has also had regard to the judgement in El Jejieh v MICMSMA [2020] FCA 1103, which sets out the principle that an applicant who is the holder of a subclass 309 visa, “in a sense” that visa is evidence that demonstrates the applicant is the spouse of an Australian citizen. In this review, the evidence indicates that the applicant and sponsor were in a genuine spousal relationship after the applicant arrived in Australia as the holder of a subclass 309 visa. Further there is no evidence before the tribunal to suggest that the principles in the judgement in El Jejieh v MICMSMA do not apply in this matter.

12. For these reasons, and on the basis of the evidence before me, the tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

13. 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; 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 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).

14. 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?

15. 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 in accordance with reg 1.24 is provided.

16. The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116).

17. 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).

18. The applicant provided a statutory declaration form 1410 dated 7 June 2017 in which he claimed the relationship ended in November 2017. The tribunal accepts that this was a typographical error and the applicant intended to claim the relationship ended in November 2016. The applicant referred to a statutory declaration provided to the Department dated February 2017 in relation to his description of the relevant family violence he had experienced. The applicant claimed he had suffered depression, emotional and mental trauma loss of finances and financial hardship as a result of the family violence caused by the sponsor. In this statutory declaration dated 11 February 2017 the applicant identified the sponsor as the person who had perpetrated the family violence, provided a description of the claimed family violence and the injuries he had suffered including depression and anxiety, being kicked out of the house, and an injured nose. The tribunal is satisfied that the statutory declarations provided by the applicant, who is the spouse of the alleged perpetrator, sets out the allegation of family violence, name is the person alleged to have committed the family violence and identifies the relationship with the person claimed to have perpetrated the family violence. Therefore the tribunal is satisfied that the statutory declarations by the applicant meets the requirements of r.1.25, and therefore meets the requirements of r.1.24(a).

19. The applicant provided a medical report dated 25 July 2017 from his doctor at the [Suburb 1] Family Practice. The report identifies that the doctor has been treating the applicant since 23 May 2017 and that the applicant suffers from depression. The report identifies that the applicant reports his deterioration in mental state is due to domestic violence and marital conflict with his wife and that they now live separately. The report states that the applicant is receiving psychotherapy and has been prescribed antidepressant medication. I am satisfied that the medical report identifies the alleged victim and details treatment for mental health that is consistent with the claimed family violence. I am therefore satisfied that the medical report is of the type of evidence specified by the Minister in the instrument 12/116, and meets the requirements of r.1.24(b).

20. The applicant provided a psychological report dated 30 June 2017. At the time of this report the psychologist recorded that she had seen and assessed the applicant on one occasion, namely 27 June 2017. However I have also considered the statutory declarations of the same psychologist dated 12 April 2018 and I accept that the psychologist continued to see the applicant to provide psychological therapy and cognitive behaviour therapy. I accept that the psychologist continued to provide treatment to the applicant for an adjustment disorder with clinical depression anxiety which the psychologist recorded was a result of the applicant’s mistreatment by his marital partner. I am satisfied therefore that the psychologist has treated the applicant while performing the duties of a psychologist and has not just provided a one-off report. I have considered the three page report provided by the psychologist dated 30 June 2017. I am satisfied that the author is a clinical psychologist the author records that she is of the clinical opinion that the applicant is suffering an adjustment disorder with depressed mood and anxiety as a result of his mistreatment at the hands of his marital partner, and experiences high level of stress as a result of ongoing harassment and the uncertainty of his visa status and the traumatic incident suffered by his subsequent partner and the rumours in his country of origin that he cause damage to his reputation and self-esteem. I am satisfied that the psychologist has expressed an opinion that the applicant was subject to family violence in their phrase that he suffered “mistreatment at the hands of his marital partner”. The psychological report outlines the account provided by the applicant of the deterioration in the marital relationship and am satisfied the psychologist is given reasons for their opinion and identified the sponsor as the alleged perpetrator. I am therefore satisfied that the psychological report is of the type of evidence specified by the Minister in the instrument 12/116, and meets the requirements of r.1.24(b).

21. Therefore, the evidence presented by the applicant in the form of the three statutory declarations and reports meet 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?

22. The applicant gave evidence at the hearing. The applicant stated that he could give his evidence in English, however the tribunal was not completely satisfied that his answers were appropriate to the initial questions, and indicated that it would be appropriate that the applicant gave his answers in his first language and used the interpreter for all communication with the tribunal.

23. The applicant told the tribunal that he had seen the psychologist for counselling for three years and ceased the appointments just before the covid-19 pandemic. The applicant stated that he saw the psychologist one or two times per week. The tribunal asked the applicant to confirm that his evidence was that he saw his psychologist one or two times a week for three years. The tribunal advised the applicant to be careful in his evidence, and that it could check how many times he had consulted his psychologist. The applicant stated he saw his psychologist once per week for 2 ½ months and then once a month for six months.

24. The tribunal had a discussion with the applicant that if he wished the tribunal to rely on his evidence, he must think before he speaks and be very careful in what he says. The tribunal stated there was a great deal of difference between stating he had seen his psychologist one or two times a week for three years, and stating he had seen his psychologist once a week for 10 weeks, and then once a month for six months. The applicant stated his doctor had arranged for him to see psychologist for 10 sessions, and he may have seen his psychologist twice in the first week. He stated this arrangement was repeated, and he sought the psychologist once a month. He stated he never had to pay for any of the psychological appointments.

25. The applicant stated that he arrived in Australia in December 2014 and the sponsor’s attitude began to change in September of the following year. The applicant stated that the sponsor had made a “big mistake” in May 2015. He explained that the big mistake was that the sponsor had established contact with her ex-boyfriend. The applicant stated the sponsor’s ex-boyfriend was not the father of her four children. The applicant stated that they sorted their issues out and he accepted her apology.

26. The applicant stated that things were financially difficult for him and the sponsor and they had to move every two or three months. The applicant stated they had to move from their rented premises because of the behaviour of the sponsor’s four children who were all teenagers, aged between approximately 12 and 18 years of age. He stated they caused damage to the premises and he gave an example of burning the carpet in one of the rented properties with an iron. The applicant stated at one point he and the sponsor were placed in emergency housing and the children went to live with their father. The applicant stated the family of six were reunited and moved into a rental house in [Suburb 2] in September 2015 where they lived until August 2016.

27. The applicant stated that after August 2016 he and the sponsor lived at a property in [Suburb 1]. The applicant stated that after they separated in November 2016, he moved into a room in a house in another address in [Suburb 1]. The applicant stated that in February or March 2017 he returned to the same address in [Suburb 2] to reside with his new partner. The tribunal notes that it is a strange coincidence that the applicant resided at exactly the same address in [Suburb 2] with both partners within a period of six or seven months.

28. The applicant stated that the relationship with the sponsor was good even at the time when they moved to [Suburb 1] in August 2016. He stated they had had minor issues prior to that but had sorted them out. The applicant stated they had financial difficulties when two of the children were over 18 and the sponsor did not receive any Centrelink payment for those children. The applicant stated that in 2016 the sponsor was increasingly influenced by her ex-boyfriend. The applicant stated during this period he was working hard doing extra hours in his cleaning work, working five days a week sometimes even working Saturday. The applicant stated that the sponsor was also working during this time. The applicant stated that the sponsor was pressuring him to sell his properties in Sri Lanka. The applicant stated he always refused to do this because his parents were aged, and they resided in Sri Lanka. The applicant stated the sponsor had also suggested that he should do tax-free or bogus documents for his cleaning business, but he refused to do this.

29. The applicant stated there was another issue in September 2016 when one of the sponsor’s friends was in need of a kidney, and were prepared to pay for it and the sponsor wanted the applicant to donate one of his kidneys. The applicant stated he had provided evidence of this in the form of chat or text messages to the Department. These messages were not on the Department file available to the tribunal. The applicant’s representative indicated she had not acted for the applicant at that time, but understood they had been provided to the Department and were readily available to be provided to the tribunal. The tribunal requested that these documents be provided to it by the end of the week, so that all documents provided by the applicant were available to the tribunal.

30. The applicant stated that in September 2016 the sponsor assaulted him. He stated this was the second assault. He stated they had been arguing about the request for the kidney, his refusal to sell his properties in Sri Lanka, the sponsor’s suggestion that he forge payslips, and other financial matters. The applicant stated the sponsor was very angry and she struck his face and her fingernails scratched him. The applicant stated he had previously discussed the tension between himself and the sponsor with his friend [Mr B], and his friend had warned him about the laws in Australia in relation to domestic violence and that if a physical dispute occurred between the couple the laws favoured the female in Australia. The applicant stated he did not react to the sponsor hitting him as he did not want to get into difficulty with the police. The applicant stated he felt insecure because he was isolated.

31. The tribunal asked the applicant if he was scared, and the applicant repeatedly did not answer this question. The applicant stated the sponsor reacts quickly and then repents. The applicant stated he did not react because of the advice of his friend [Mr B]. The applicant stated his friend is very supportive. The applicant stated that he understood the police would arrest the male in a dispute between the female and male couple. The applicant stated he did not want to get involved in any illegal activities. The applicant stated he did not react to the sponsor because he did not want to get arrested. The tribunal explained it was asking if the applicant was scared of the sponsor or apprehensive for his well-being in his relationship with the sponsor. The applicant stated he loved the sponsor.

1. The tribunal asked the applicant to talk about the first assault as he had described the assault in September 2016 as the second assault. The applicant stated there was an incident that arose out of an argument in September 2015. The applicant stated again they had argued about his refusal to sell properties back in Sri Lanka and her relationship with her ex-boyfriend. The applicant stated that the sponsor had thrown bottles at him. The applicant stated she threw 2 to 3 supplement bottles. The applicant stated the sponsor then grabbed a statue of buddha and smashed it. The applicant stated he had brought this statue with him from Sri Lanka.

2. The witness [Mr B] joined the hearing and gave evidence. He stated he had met the applicant at the gym, and knew both him and the sponsor. He stated he had seen scratch marks on the hand of the applicant in about September or October 2015. He had advised the applicant not to make things harder. He stated he had heard the applicant and sponsor had arguments but thought they were part of a fairly normal relationship at that time. The witness stated he heard from the applicant in late 2016, and the applicant told him the sponsor was asking him for money. The applicant described it in a way that the sponsor was not behaving normally, and was demanding money. The witness stated that in late 2016 the applicant came to stay at his place because the sponsor had hit him with a bottle or a statue or something. The witness stated that the applicant stayed at his place, until the sponsor said that everything was good and he could return.

3. In answer to a question from the tribunal the witness stated he had had a meeting with the applicant on Saturday before the hearing, and a brief phone call on the day of the hearing. He stated he had not had any call or text from the applicant after the hearing had started.

4. The tribunal notes that in the previous statements and statutory declarations made by the applicant he has never referred to a statue being involved in an incident or alleged with the sponsor. The tribunal has grave concerns as to the reliability of the evidence before it in which both the applicant and the witness referred to a statue being involved in an assault. The tribunal discussed this with the witness, but he declared he had not had any conversation with or message from the applicant after the hearing started.

5. The witness stated that the applicant is a hard worker, and always legally compliant. The witness stated that although he is a bodybuilder the applicant is an innocent person.

6. After the witness had given evidence and was excused from the hearing the applicant stated that he had told the witness about both assaults, and went to the witness’ house after the second assault. The applicant stated that the witness scratched his face, and pressed her hand into his face during the second assault in September 2016.

7. The tribunal put information to the applicant pursuant tos.359AA in relation to the inconsistent evidence of the witness and the applicant. The tribunal explained the particulars that the applicant had said the second assault in September 2016 involved the sponsor scratching his face with her finger, and the witness had said the second assault in late 2016 was when the sponsor had thrown a bottle or a statue at the applicant. The tribunal explained that the applicant had given evidence that the assault in which the sponsor had thrown a bottle and smashed a statue was the first incident in September 2015. The tribunal explained that the evidence of the applicant and the witness was that the applicant went to stay at the witness’ house only after the second incident in September 2016. The tribunal explained the relevance of the information is that if the tribunal relied on the inconsistent nature of the information in that the witness had provided a description of the assault that the applicant stated happened the year before, the tribunal may not be satisfied that the applicant had experienced the relevant family violence as claimed. The tribunal stated that if the tribunal was not satisfied that the applicant had experienced relevant family violence it would be the reason or part of the reason the tribunal would be required to refer the matter to an independent expert.

8. The applicant stated he understood the particulars of the information the relevance of the information in the consequence of the tribunal relied on the information. The tribunal invited the applicant to comment or respond to the information, but also allowed the applicant the opportunity to consult with his representative. The hearing was adjourned for a short period to allow the applicant to consult with his representative. After the adjournment the applicant stated he wished to respond in the hearing.

9. The applicant stated that the witness’s recollection was mixed up because he used to discuss his problems with the witness. The applicant stated he only went to the witness’ house after the second dispute in September 2016 and the sponsor threw the bottle and smashed the statue in the first incident in September 2016.

10. The applicant stated he had a recording made after the incident. The applicant explained he had spoken to someone else at the gym. The applicant stated he had decided not to report the incident to the police. The applicant stated he was talking to the sponsor and the other person made a recording of the conversation between the applicant and the sponsor without the sponsor’s knowledge. The applicant stated that in the conversation the sponsor acknowledges that they had had an argument and she was apologising. The tribunal stated it was not interested in receiving recordings made without the knowledge of another person, particularly when that person is not able to be present and the recording is not able to be dated or verified. The tribunal did not accept the admission into evidence of the recording.

11. The tribunal also discussed with the applicant that the sponsor had written to the Department on 4 November 2016 and 14 November 2016 to advise she wished to withdraw her sponsorship and that she had been separated from the applicant for five months. The tribunal put this information to the applicant pursuant to s.359AA. The tribunal discussed with the applicant that it did not see any benefit to the sponsor to advise the Department that they had been separated for five months as at November 2016. The tribunal discussed with the applicant that the relevance of this information was the credibility of the evidence the applicant had provided and if the tribunal relied on the evidence of the sponsor that the relationship had ended many months before November 2016, the tribunal may not accept the reliability of the evidence of the applicant in many aspects of the review. The tribunal stated that if it was not satisfied that the applicant had suffered relevant family violence it would be the reason or part of the reason the tribunal would be required to refer the matter to an independent expert.

12. The applicant indicated that he understood the particulars of the information, the relevance of the information, and the consequences if the tribunal relied on the information. The tribunal invited the applicant to comment or respond, but allowed the applicant the opportunity to consult with his representative. The hearing was adjourned for a short period to allow the applicant to consult with his representative. After the adjournment the applicant indicated he wished to respond in the hearing. The applicant indicated that the respondent was annoyed, and may have stated they had been separated for five months for this reason. The applicant stated he could provide bank details to show they were living together and some video evidence taken of them together. The tribunal indicated that bank statements did not necessarily demonstrate that the parties had remained together, and video evidence would not necessarily confirm the date. However the tribunal accepted the submission of the representative that five months prior to November 2016 the parties have provided evidence of the joint relationship to the Department. The applicant states that he left the home where he resided with the sponsor in November 2016.

13. The applicant stated the sponsor had demanded the cost for the visa application be repaid to her. The applicant stated he had not paid any money back to her. The applicant stated that sponsor was continuously putting a lot of pressure on her for money. The applicant stated that the sponsor requested money as part of their divorce. The applicant stated he told the Department and a psychologist that the sponsor was demanding money for the divorce. The applicant stated he never gave the sponsor any money after they separated. He stated he had to concentrate on his second partner and her difficulties.

14. The tribunal has considered the oral evidence at the hearing from the applicant and his witness, and the information in the statutory declarations provided to the Department from the applicant. The tribunal is not satisfied that the information and evidence provided by the applicant is consistent or reliable.

15. Having considered all of the evidence before it, the tribunal was not satisfied for the purposes of reg 1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the tribunal sought the opinion of an independent expert. In compliance with a request from the applicant, the tribunal referred the matter to the independent expert and request the applicant be assessed by a different expert then had provided the previous report to the Department.

16. On 22 March 2022 the independent expert provided an opinion to the tribunal that in relation to two incidents of physical assault in September 2015 and October 2016, the applicant had suffered physical abuse that met the criteria for relevant family violence. The independent expert provided a report that concluded that the applicant had suffered relevant family violence.

17. In the report the independent expert concluded the claimed psychological abuse did not meet the criteria of relevant family violence. The independent expert did not complete the findings in relation to the claims of financial abuse, the table was left blank.

18. 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 reg 1.23 the tribunal is required to take as correct an independent expert’s opinion, properly made.

19. The tribunal notes that the independent expert did not refer to the inconsistent evidence provided by the applicant and his witness to the tribunal in the hearing in relation to the claimed physical assaults. The tribunal is required to accept the report of the independent expert as correct, unless it has not been validly made.

20. 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. As stated earlier in this decision, the tribunal is satisfied that the relationship broke down in 2016, and therefore the relevant family violence, or at least the first of the two incidents that occurred in September 2015, occurred while the relationship existed. There is discrepancy as to when the relationship ended in 2016, and there is discrepancy (between the evidence given by the applicant to the tribunal, and the information given by the applicant to the independent expert) as to when the second claimed incident of physical abuse occurred in 2016, but this does not affect the finding of the independent expert, or the conclusion that the first incident occurred before the spousal relationship broke down.

21. Accordingly, the tribunal finds, based on the report of the independent expert, that the applicant is taken to have suffered family violence committed by the sponsor for reg 1.22.

22. 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).

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

    DECISION

24. 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) and (c) of Schedule 2 to the Regulations.

    Margie Bourke
    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.