1904646 (Migration)

[2023] AATA 3891

1904646 (Migration) [2023] AATA 3891 (24 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Charlie Bulos (MARN: 9501091)

CASE NUMBER:  1904646

MEMBER:David Crawshay

DATE:24 July 2023

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 24 July 2023 at 12:28pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – relationship ceased – victim of family violence – non-judicially determined claim – Form 1410 Statutory Declaration – IMMI12/116 – statutory declaration by a social worker – statutory declaration by a registered psychologist – financial abuse – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 1.25; Schedule 2, cls 100.221

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 February 2019 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 11 September 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) and (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 was not satisfied that the applicant was the spouse of the sponsor prior to their relationship ceasing.

5. The applicant appeared before the Tribunal on 20 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], the applicant’s brother, and a friend, [Ms B]. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. On the basis of the evidence, the Tribunal is satisfied that the applicant and the sponsor were in a partner relationship and that this relationship has ceased. It is therefore satisfied that the applicant meets cl.100.221(4)(b). In making this finding, it accepts that the parties’ relationship was genuine and continuing at some point. In this way, it has come to a different finding from the delegate.

9. The Tribunal notes that the issue concerning the delegate was that certain evidence pointed to the parties’ relationship having ceased in April 2017, which was before the applicant claims that it did. However, in the absence of a clear finding from the delegate that the parties’ relationship was never genuine (or at least that it was not genuine after the date when she first arrived in Australia as the holder of a Subclass 309 visa), the Tribunal finds that this issue should be dealt with when assessing if the family violence occurred during the relationship.

10. The issue that therefore arises on the evidence in this matter is whether the applicant has suffered family violence committed by the sponsor within the meaning of the Regulations after she first entered Australia as the holder of a Subclass 309 visa.

11. 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).

12. 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?

13. Under r.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 r.1.24 is provided.

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

15. A statutory declaration under r.1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: r.1.25(2).

16. The Tribunal has seen a Form 1410 Statutory Declaration for family violence claim signed by the applicant and dated 20 April 2018. The declaration alleges family violence committed by the sponsor, gives details of the alleged family violence experienced and states the impact that the alleged family violence has had on the applicant. The Tribunal accepts that the declaration complies with the evidentiary requirements of r.1.25.

17. The applicant is also required to provide two pieces of evidence under legislative instrument IMMI12/116. She has submitted two such pieces that purport to substantiate her claim of family violence. The first of these are statutory declarations by [Ms C], dated 28 April 2018 and 16 January 2023. [Ms C] stated that she is a social worker, and she provided her registration number from the Australian Association of Social Workers in the declaration from January 2023. The second is a statutory declaration by [Ms D] dated 19 April 2018. [Ms D] stated that she was a registered psychologist and her registration was able to be confirmed. Based on this information, the Tribunal accepts that the two authors were eligible to complete their declaration. As such, it has considered [Ms C]’s declaration according to the requirements for a social worker, and [Ms D]’s declaration according to the requirements for a psychologist.

18. Dealing firstly with [Ms C]’s declaration of January 2023, it stated that she had met with the applicant in 2018 and had maintained annual contact with her since to check in on her mental health and wellbeing. Her earlier declaration stated that she had met with the applicant on three occasions for counselling and in order to prepare a report on her professional observations. Based on this information, the Tribunal accepts that [Ms C] provided counselling or assistance to the applicant while performing the duties of a social worker.

19. In her declaration, [Ms C] stated her opinion that the applicant was subjected to family violence from the sponsor in the form of “psychological, emotional and economical family violence”. It also detailed the reasons for this opinion, The Tribunal accepts that [Ms C]’s declaration satisfies the evidentiary requirements.

20. In relation to the declaration from [Ms D], it stated that she had met with the applicant on three occasions. Based on this information, the Tribunal accepts that [Ms D] treated the applicant while performing the duties of a psychologist. In her declaration, [Ms D] stated her opinion that the applicant was subjected to family violence from the sponsor in the form of “controlling, coersive [sic] and manipulative behaviour from her husband” and also detailed the reasons for this opinion. The Tribunal accepts that [Ms D]’s declaration satisfies the evidentiary requirements.

21. Based on the above findings, the Tribunal accepts that the two documents satisfy the evidentiary requirements contained in Schedule 1 of IMMI12/116, and it is satisfied that the applicant has made a non-judicially determined claim of family violence under the Migration Regulations. It now moves on to consider if the claimed relevant family violence occurred.

    Has the applicant suffered family violence?

22. The applicant has made a number of claims in relation to the forms of abuse she has suffered as part of her overall claim of family violence. These are, in broad terms, that she has suffered physical abuse through having to undergo a second cycle of IVF against her will, emotional abuse through disregarding her plea to not undergo this second cycle and suggesting an alternative way of conceiving that she considered “immoral”, and social abuse by his controlling behaviour in not letting her communicate with her friends or with his parents with whom she claims to have had a good relationship.

23. The applicant has also made a claim of mixed financial and psychological abuse through various means – being the non-inclusion of her name on various property documents, the non-payment of salary to her during some of her period of employment with the sponsor, and by the sponsor effectively forcing her to sign pre-nuptial and separation agreements without independent legal advice. At hearing, the applicant also stated that $750 was taken out of her account every month after payment of her salary for mortgage purposes. This was able to be substantiated by bank statements from that period.

24. The Tribunal deals firstly with the claims of financial abuse. It accepts that the applicant has not had her name included on various property documents, although it is not satisfied based solely on this that this constitutes financial abuse as there are plausible reasons for his doing so – including for taxation purposes. It has considered that the applicant was directed to transfer $750-per-month after being paid her salary for “mortgage” payments according to bank statements but does not accept that this by itself constitutes financial abuse. In coming to this finding, the Tribunal accepts that such a measure may have been necessary in order to ensure that mortgage repayments had been made. In any case, contributing to the payment of a mortgage over a house would be considered a strong indicator of a committed relationship, so it would be very strange to view these payments as being indicators of abuse without more information.

25. The Tribunal has considered the specific claim of abuse in relation to the pre-nuptial and separation agreements. It must first be said that these documents, and especially the separation agreement, are not beneficial to the applicant. In relation to the separation agreement, it does not appear to reflect the aforementioned mortgage payments by the applicant or improvements made by her to the parties’ [Town 1] property. Instead, only $5,000 was allocated to her – which was said to represent half of the $10,000 increase in value of the [Town 1] property. Moreover, the applicant told the Tribunal that this payment and other payments of $6,000 were not ultimately made. While it is not able to fully verify this claim, it does note that the balance of the parties’ joint account (an account almost exclusively contributed to by the applicant) was transferred to the sponsor in early-December 2017 following the applicant’s moving out of the [Town 1] property. In other words, it appears plausible that the sponsor may not have made the payments based on other instances of behaviour.

26. As to the claim by the applicant that she was forced to sign the documents without legal advice, the Tribunal finds as follows. It is not satisfied that she was forced into signing at least the separation agreement without legal advice, as she had given evidence at hearing that she had been provided the agreement by the sponsor on at least three different occasions in 2017. Therefore, if she had an issue with the document she had ample time to engage legal advice.

27. However, and having said this, the Tribunal has considered the sponsor’s behaviour in totality. From the time that the applicant signed the pre-nuptial agreement in February 2014, through the period when she worked for the sponsor without salary, to the time when she was provided with a separation agreement which she signed in October 2017 that did not reflect payments she had made towards the [Town 1] property, and eventually to December 2017 when the sponsor emptied the balance of the parties’ joint account, the applicant had been under the sponsor’s thumb financially. This is all the more significant as the applicant had previously been employed as a restaurant manager during her time in [Country 1] and could therefore not be said to be unsophisticated financially. In other words, this was not simply a case of the sponsor assuming the role of a beneficial financial controller in a situation where the applicant was financially unsavvy. Rather, the Tribunal finds that the actions of the sponsor across a long period of time constitute a pattern of financially predatory behaviour. It is satisfied that the sponsor had been financially abusive towards the applicant.

28. As to the effect of this abuse on the applicant, the Tribunal has considered the declarations of [Ms C] and [Ms D]. [Ms C] stated that the applicant felt “completely betrayed” by the sponsor and that “he did not show any care or concerned [sic] at what would become of her and whether or not she was safe”. She said that the applicant felt that she had been used in every way and had been “completely abandoned”. [Ms D] stated that the applicant had reported feelings of “hopelessness, being lost and abandoned”. Diagnostic tests carried out by [Ms D] indicated that she was unable to adjust to everyday life challenges due to low self-esteem, feelings of anxiety, insecurity, frustration and depressive feelings.

29. Having considered this information against the definition of “relevant family violence” as defined in r.1.21, the Tribunal is satisfied that the applicant was reasonably apprehensive about her own wellbeing as a result of the abuse she suffered at the hands of the sponsor.

30. Lastly, the Tribunal has considered whether this abuse took occurred while the parties’ married relationship existed: r.1.23(12). As stated above, this was in essence the issue for the delegate, who found little information to suggest that the parties’ relationship continued beyond April 2017. The Tribunal agrees with this finding. Although some evidence has been submitted showing some communications between the parties during a trip by the sponsor to [Country 2] in August and early-September 2017, these are cordial at best and are not indicative of a married relationship. The balance of the evidence points towards the relationship having ended on or around April 2017, at least in the mind of the sponsor. Significantly, the applicant testified at hearing that the sponsor first confronted her with the separation agreement in May 2017. While her evidence was that she held out hope of salvaging the relationship, this event and later events such as when he informed the Department of the breakdown of the parties’ relationship in July 2017 demonstrated that he no longer viewed the parties as being in a committed relationship.

31. Despite this finding, the Tribunal accepts that at least some of the financial abuse described above occurred before April 2017. Specifically, and as above, it considers that the applicant was under the financial control of the sponsor at the time of the cessation of the relationship and for a significant time before. Therefore, the fact that the parties’ relationship ceased prior to the eventual signing of the separation agreement is irrelevant – the behaviour that conditioned the making of that document existed before the cessation of the relationship.

32. Based on the information in front of it, the Tribunal is satisfied that the applicant suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship. As such, the applicant is taken to have suffered family violence in the relevant sense: r.1.22.

33. Having found in this way, it is unnecessary to consider the applicant’s other claims of family violence.

34. As the applicant has suffered relevant family violence committed by the sponsor, she meets the requirements of cl.100.221(4)(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

35. 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.

    David Crawshay
    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.