1826678 (MIGRATION)

[2022] AATA 461

1826678 (MIGRATION) [2022] AATA 461 (31 JANUARY 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826678

MEMBER:SM Justin Owen

DATE:31 January 2022

PLACE OF DECISION:  Sydney

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 31 January 2022 at 1:20pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – relationship ceased and non-judicially determined claim of family violence – actual and threatened emotional abuse – statutory declaration and statements from specified practitioners – opinion of independent expert taken as correct – distress at end of relationship does not negate experience of violence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25(2), Schedule 2, cl 100.221(4)(b), (c)

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 23 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 28 August 2014 on the basis of her relationship with her [sponsor]. 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 applicant was not, at the time of decision, the spouse (as defined by s. 5F of the Act) or the de facto partner (as defined under s. 5CB of the Act) of the sponsoring partner.

5. The applicant appeared before the Tribunal on 30 November 2021 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, the applicant claims the relationship with [the sponsor], the visa sponsor, has ceased and she has been the victim of family violence.

9. The Tribunal has taken into consideration all the evidence in the Departmental file [Number], folio numbered 1-230, the Tribunal’s file 1826678 and the oral evidence given by the applicant at the hearing. 

10. The applicant submitted that her marriage to [the sponsor] was an arranged marriage, where she and her sponsor married in India [in] August 2014.  The applicant stated that she first came to Australia on a Tourist visa in December 2014, ultimately moving with the sponsor to a granny flat in [Location].  The applicant returned to India and was subsequently granted a Partner (Provisional)(Class UF) (subclass 309) visa on 6 August 2015.  The applicant arrived in Australia on her provisional Partner visa on 23 August 2015.  The evidence before the Tribunal suggests that the spousal relationship between the parties continued between 2015 and 2018, despite the sponsor at one point informing the Department in July 2016 that their relationship was over.  The parties purchased a property together in December 2017 and booked tickets to travel to India together in early 2018.  In May 2018 the sponsor informed the applicant that he had moved out and considered the marriage to be over.  On 13 August 2018 the sponsor informed the Department that the relationship had concluded.  In August 2019 the sponsor informed the applicant that he had filed for divorce.  The applicant attended Court as part of divorce proceedings in November 2019.  

11. On the basis of the evidence, 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.

12. 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).

13. In the present case the applicant is seeking to 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?

14. 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.

15. 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).

16. 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).

17. The applicant has completed a statutory declaration (after 24 November 2012) under reg. 1.25(2) which sets out the allegation of family violence and names [her sponsor], who she alleges committed relevant family violence.  The applicant has also provided two other pieces of written evidence that meet the requirements of the relevant instrument for the making of a valid claim of non-judicially determined family violence. 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?

18. At the Tribunal hearing of 30 November 2021, the applicant was invited to discuss the first and subsequent incidences of family violence purportedly committed by the sponsor.  The applicant stated that she found the sponsor to be ‘controlling’ very early into their spousal relationship, outlining various incidences of controlling behaviour that left her intimidated.  The applicant stated she did not know who to talk to about her concerns.  In response to the Tribunal’s questions, the applicant stated there were many incidents where the applicant lost his temper and she was not permitted to put her point of view forward.  The applicant stated physical violence had also occurred with the sponsor where he allegedly both pushed her and pulled her hair. 

19. The applicant’s oral testimony was supported by her statutory declaration where she stated after three months of cohabitation in 2015 the sponsor started arguing with her and picking on minor issues.  She stated he verbally abused her and threatened to have her visa cancelled and be deported.  The applicant claimed the sponsor would then apologise after such arguments so she kept forgiving him. 

20. Much of the applicant’s evidence revolves around the claimed controlling behaviour of the sponsor.  The applicant discussed both orally and in her declaration how she became depressed as a result of the sponsor’s behaviour and sought medical assistance.  In 2016 the applicant claims she was not allowed back into the spousal home after a trip to India for several months before the sponsor’s parents visited Sydney and an agreement was resolved, with the relationship improving in 2017 and the parties purchasing a house together.  The relationship however foundered in May 2018 before, according to the applicant, the sponsor returned to the relationship and relations between the parties improved considerably.  The sponsor however in August 2018 informed the Department the relationship had concluded, a statement the applicant rejected with the claim she was still in a relationship with the sponsor during this period. 

21. Noting the applicant’s testimony, the Tribunal asked when the applicant consulted her doctor and psychologist about her family violence claims given the adverse impact such behaviour had had upon her.   The applicant stated that it was not until after her visa was refused.  At that time she stated she had been advised that she go and see her doctor and psychologist pertaining to family violence.  The Tribunal asked the applicant why she only raised the family violence claim after her visa was refused.  The applicant responded she was not aware until after the visa refusal.  The applicant also responded in the negative as to whether she had ever sought the assistance of the NSW Police in relation to family violence purportedly committed by the sponsor prior to the refusal of her visa.  

22. 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. On 28 January 2021 the independent expert provided an opinion that the applicant had suffered relevant family violence. 

23. The independent expert, [Dr A], held an interview with the applicant for almost two hours on 14 January 2022.  In her report [Dr A] outlined the alleged emotional abuse, including controlling behaviour and verbal abuse on the part of the sponsor, and assessed the conduct as both actual and threatened towards the applicant.  In [Dr A’s] opinion as the independent expert, the conduct of the sponsor caused the applicant to reasonably fear for, or become reasonably apprehensive, about her own wellbeing or safety.  [Dr A] also considered the applicant’s claims of alleged physical abuse and the damaging of property by the sponsor, and assessed the nature of the conduct as actual.  [Dr A] considered the conduct was directed towards both the applicant and her own property, and considered the conduct of the sponsor caused the applicant to reasonably fear for or become reasonably apprehensive about her own safety or wellbeing.   

24. 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.

25. 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 has noted the applicant and sponsored married in August 2014 and cohabitated with the sponsor on a permanent basis after she travelled to Australia on her provisional Partner visa from May 2015. The independent expert, [Dr A], has accepted the applicant’s evidence that the parties were in a spousal relationship until 2018, and the parties cohabitated during this period. [Dr A] considered the applicant to be “reliable and consistent” in her claims when tested at interview and compared with collateral information. The independent expert is satisfied that the family violence occurred where the sponsor’s behaviour was both actual and threatened and was directed towards the applicant and her property. Whilst she notes some of the distress of the applicant is as a result of the end of the relationship, [Dr A] states that this distress “does not negate her experience of alleged family violence”. [Dr A] stated that in her opinion, the applicant meets the criteria for family violence according to the Migration Regulations.

26. Given the above, the Tribunal must take the independent expert’s opinion to be correct that the applicant is taken to have suffered family violence.  Having considered all of the evidence before it, the Tribunal accepts, for the purposes of reg. 1.23, that the applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship.  Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor under reg. 1.22.

27. Further, based on all other evidence, the Tribunal is satisfied that [the sponsor], who is an Australian citizen, was the ‘sponsoring partner’ of the applicant.

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

    DECISION

29. 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.

    Justin Owen
    Senior 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.