1826886 (Migration)

[2019] AATA 2784

1826886 (Migration) [2019] AATA 2784 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826886

MEMBER:Justine Clarke

DATE:19 March 2019

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 19 March 2019 at 4:43pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – validity of section 376 and section 375A certificates – relationship ceased – genuine spouse prior to cessation of relationship – victim of family violence – judicially-determined claim – intervention order issued by a Court – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360, 375A, 376
Migration Regulations 1994 (Cth), rr 1.21, 1.23; Schedule 2, cl 100.221

CASES
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 September 2018 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a [age] year old national of Lebanon.

3. On 23 June 2015, the applicant applied for the visa on the basis of her relationship with her sponsor, [Mr A].

4. At the time of application, 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 (the Regulations). The primary criteria must be satisfied by at least one applicant. 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.

5. The applicant provided the Tribunal with a copy of the primary decision. The primary decision states that:

   ·On 2 February 2018, the sponsor notified the Department that his relationship with the applicant had ceased.

   ·On 14 March 2018, the Department emailed the applicant requesting her comment on the change to her relationship status.

   ·On 18 March 2018, the Department emailed the applicant requesting further evidence of the existence of the relationship prior to its cessation.

   ·As at 10 September 2018, which was the date of the Department’s refusal decision, the Department had not received a response from the applicant.

6. Accordingly, the delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221(1) of Schedule 2 to the Regulations because there was no evidence that she met cl.100.221(2), (2A), (3), (4) or (4A).

7. On 14 September 2018, the applicant applied to the Tribunal for review of the primary decision. Subsequently, the applicant was represented in relation to the review by her registered migration agent.

8. On 4 December 2018, the Tribunal wrote a letter to the applicant pursuant to s.359(2) and purportedly pursuant to s.359A of the Act. With respect to s.359A, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reason, or a part of the reason, for affirming the decision under review. The letter stated that information on the Department’s file indicates that the applicant’s relationship with the sponsoring partner has ended and that the sponsoring partner has withdrawn the sponsorship. With respect to s.359(2), the Tribunal informed the applicant that if she was no longer in a relationship with the sponsoring partner then there were a number of exceptions under which she could be granted the Partner visa. The letter listed exceptions relating to the death of the sponsoring partner, family violence and certain court orders or responsibilities in relation to children. The letter invited her to provide information that she believes may be relevant to the exceptions. The letter stated that, if the comments or response and the information were not provided in writing by 18 December 2018 or an extension of time not sought by that time, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response or the information.

9. On 18 December 2018, within the requested timeframe, the applicant submitted her response, providing documentary evidence that, prior to the cessation of the relationship, she had been in a spousal relationship with the sponsor as set out in s.5F of the Act and information pertaining to her claim that she had suffered family violence committed by the sponsor. The documents included a copy of an intervention order made [in] February 2018.

10. Pursuant to s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant claims the relationship with [Mr A], the visa sponsor, has ceased and she has been the victim of family violence. The issue is whether the applicant meets cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations.

    Was the applicant the spouse of the sponsoring partner?

13. In assessing whether, prior to the cessation of the relationship, the applicant was the spouse of the sponsoring partner, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files.

14. The Department’s file contains two non-disclosure certificates, both made on 20 September 2018. One certificate was made pursuant to s.376 and the other pursuant to s.375A of the Act.

15. The s.376 certificate relevantly states:

    the document(s)/information contained in folio(s) 56 to 74 & 94 of file [number]… disclosure of this material would be contrary to the public interest because the information could reveal confidential investigative methods and IT system used by the department to prevent, detect and investigate breaches of law and would likely prejudice the effectiveness of those methods.

16. The Tribunal does not consider that this certificate was validly made as the delegate has not provided sufficient reasons for non-disclosure on public interest grounds. The Tribunal considers the certificate contains a mere description rather than a public interest immunity reason. The Tribunal is mindful of the case of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081. In that case, the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’.

17. As the Tribunal considers that the certificate said to be made pursuant to s.376 is invalid, the Tribunal did not give the applicant a copy of the certificate or an opportunity to seek the exercise of the Tribunal’s discretion under s.376(3)(b).

18. Further, the Tribunal does not consider that the information sought to be protected from disclosure by the purported non-disclosure certificate to be relevant to matters considered in this review.

19. The s.375A certificate relevantly states that:

    the information contained in folio(s) 111 to 114, 127 to 132, 137 & 150 to 157 of file [number], would be contrary to the public interest because emails from, interview with and talk with the sponsor of the applicant would disclose the confidential source of information where the source has concerns of about personal security of the sponsor.     

20. The Tribunal considers that this certificate was validly made but the Tribunal does not consider that the content sought to be protected from disclosure is relevant to the matters before the Tribunal. This is because the source first contacted the Department [in] February 2018. The Tribunal notes that the intervention order was made [in] February 2018. As will be discussed, the order states that [Mr A] was at the Court. The Tribunal considers that the intervention order is of greater relevance in these proceedings than the claims made by the source [in] February 2018—a couple of days before the Court made the intervention order. The source also contacted the Department on a couple of occasions after the intervention order was made. The source never mentioned the intervention order but, to the contrary, on one occasion claimed that the parties had reunited and were living together.

21. In view of all the evidence before the Tribunal, including evidence from the applicant’s doctor of attendances on the applicant (folios 42 and 43 of the Tribunal’s file), including after one occasion where she claimed to have been physically assaulted by her husband and from reviewing photographs of marks on the applicant’s body from the claimed assault (folio 32 of the Tribunal’s file), the Tribunal does not consider that the source who provided information to the Department to be credible. It is for this reason that the Tribunal considers that the information, sought to be protected from disclosure pursuant to the s.375A certificate, is not relevant to the matters to be determined in this review. Accordingly, the Tribunal did not write to the applicant to inform her about the s.375A certificate, provide her with a copy of the certificate nor invite her to make submissions as to the validity or invalidity of the certificate.

22. The Tribunal notes that the applicant provided electricity bills, rental receipts and many photographs of her together with the sponsor in a variety of settings (folios 31–34 and 40–­41 of the Tribunal’s file). The written submissions of 18 December 2018 explained that these items ‘are the only documents that our client was able to salvage. He never opened an account for her or a joint account’. On the basis of the evidence before the Tribunal, the Tribunal is satisfied that the applicant and the sponsor were in a partner relationship and that this relationship has ceased.

23. 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.

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

24. Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in r.1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).

25. The applicant is seeking to establish family violence on the basis of evidence tested before a Court. Acceptable forms of court-tested evidence, as set out in r.1.23, are: a court injunction under the Family Law Act 1975; an Australian Court order for the protection of the alleged victim; or a conviction or finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim. Where such evidence is provided, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence: r.1.23(1).

26. Although not expressly articulated in the written submissions, the Tribunal is satisfied that the applicant is making a claim of judicially-determined family violence. The relevant evidence is a Court order for the protection of the applicant. The Tribunal’s file contains an Intervention Order issued by [a Court in] February 2018. The order names the respondent as [Mr A] and states that he was in Court.

27. The Tribunal is satisfied that a court order was made against [Mr A] for the protection of the applicant in relation to violence that occurred whilst the parties were in the relationship, after [Mr A] had an opportunity to be heard or otherwise make submissions to the Court. Therefore, family violence is taken to have occurred under r.1.23 of the Regulations.

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).

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

    DECISION

30. 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.

    Justine Clarke
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21 Interpretation

    …

    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.

    …

    violence includes a threat of violence.

    …

    1.23     When is a person taken to have suffered or committed family violence?

    (1)For the purposes of these Regulations:

    (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.