1910316 (Migration)

[2021] AATA 1444

1910316 (Migration) [2021] AATA 1444 (13 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910316

MEMBER:P. Maishman

DATE:13 May 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

·cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Statement made on 13 May 2021 at 2:50pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – relationship ceased and sponsorship withdrawn – non-judicially determined claim of family violence – statutory declarations by applicant and specified professionals – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 1.25, Schedule 2, cl 801.221(6)(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 Immigration on 24 April 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 January 2016 on the basis of her relationship with her sponsor, [Mr A]. At that time, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The primary criteria must be satisfied by at least one applicant. Relevantly to this matter the primary criteria include cl.801.221 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.801.221(6)(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.801.221(6) because the evidence provided by the applicant did not meet the statutory requirements to be taken to be a non-judicially determined claim of family violence.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

8. The Tribunal had before it a copy of the Department’s file containing evidence provided by the applicant in support of her application and documents in relation to her claim of family violence. The Department’s file also contains a non-disclosure certificate under s.376 of the Act dated 12 June 2019 in respect of folios to 204- 206 of its file. That was revoked on 9 March 2021. The delegate issued a subsequent non-disclosure certificate under s.376 of the Act on 9 March 2021 in respect of folios  204-206 of its file. The delegate says the disclosure of the material at folios 204-206 would be contrary to the public interest because information was provided in confidence and contains personal information of third parties not associated with the application.

9. The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The delegate recorded the applicant was granted a Partner (Temporary) subclass 820 visa on the basis of her de facto relationship with [Mr A] on 3 July 2017. On 4 October 2018 [Mr A] withdrew his sponsorship as the relationship had broken down. The applicant confirmed in writing on 30 October 2018 that her relationship with [Mr A] had ended and explained some of the circumstances she considered contributed to the relationship ceasing.

10. The decision record discloses the information received by the Department in respect of the genuineness of the applicant’s and [Mr A]’s relationship prior to its cessation has been analysed and the delegate is satisfied the applicant was the de facto partner of her sponsor prior to the relationship breakdown and claims of family violence.

11. The Tribunal reviewed the relationship documents contained on the Department’s file.

12. 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.

    Non-disclosure certificate

13. The Tribunal considered the validity of the non-disclosure certificate. The Tribunal is satisfied the information to which the certificate applies was provided in confidence and contains information about parties that are not associated with this application. The Tribunal is satisfied there is a public interest not to disclose the information, and that the certificate is otherwise valid.

14. The Tribunal has not, prior to this decision, disclosed the existence of the certificate to the applicant. The Tribunal does not consider information protected by the certificate is relevant to its decision. The information contains the source’s opinion about several matters that are unsupported by any evidence. The opinion of the source is unsubstantiated and irrelevant to the factual matters to be decided by the Tribunal.

15. The Tribunal has given no weight to the information protected by the non-disclosure certificate in making its decision.

    Issue

16. 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.

17. 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).

18. 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?

19. 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.

20. 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)).

21. 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). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).

22. The applicant gave the Department a statutory declaration (Form 1040) dated 16 January 2019; a letter from [Dr B] dated 31 January 2019 and a statutory declaration from [Dr B] dated 12 February 2019; and a statutory declaration from [Ms C] dated 14 January 2019.  

23. The delegate was not satisfied the information provided by the applicant in respect of her claim of family violence met the statutory requirement for evidence to be taken to be a non-judicially determined claim of family violence.

24. The Tribunal received a statement from the applicant dated 12 May 2021, supplementary to her statutory declaration (Form 1410) signed and witnessed on 16 January 2019. The applicant alleged she suffered verbal and physical abuse, and inappropriate and controlling behaviour perpetrated by [Mr A] during their relationship. His behaviour made her feel, in summary, ashamed, embarrassed, unsafe, lonely and isolated. She started to self-harm.  

25. The applicant’s statutory declaration dated 16 January 2019 and supplementary statement of 12 May 2021 set out the allegation she is the victim of relevant family violence and names the person alleged to have committed the relevant family violence. The applicant’s statutory declaration dated 16 January 2019 and supplemented by her statement on 12 May 2021 meets the requirements of r.1.25.

26. The applicant provided a statutory declaration from [Ms D], social worker and member of the AASW dated 16 December 2019.  [Ms D] identifies the applicant attended counselling to assist in the management of anxiety and panic attacks. [Ms D] is of the opinion the applicant was subjected to relevant family violence perpetuated by [Mr A] based on her consultations and experience. [Ms D] identifies the applicant was at significant risk given [Mr A]’s behaviours and access to weapons. 

27. [Ms D’s] statutory declaration states the applicant was subject to family violence and details the reasons for that opinion. [Ms D] identifies [Mr A] to be the alleged perpetrator of the violence suffered by the applicant as required by Schedule 1 of IMMI12/116.

28. The applicant provided a statutory declaration by [Ms E], clinical psychologist, dated 21 January 2020. [Ms E] reports the applicant attended sessions for psychological support with her experience of domestic violence and its impact on her. [Ms E] notes the applicant appeared genuine and consistent in her recollections and was at times distressed. [Ms E]’s clinical opinion was the applicant felt isolated, controlled and threatened during her relationship with [Mr A].

29. The statutory declaration contains the psychologist’s opinion that the applicant was the subject of family violence, details the reason for her opinion, and identifies the alleged perpetrator of the family violence as required by Schedule 1 of IMMI12/116.

30. The Tribunal is satisfied the statutory declarations of [Ms D] and [Ms E] are acceptable evidence as described in IMMI 12/116. The Tribunal is satisfied the applicant has presented at least 2 different types of evidence for the purposes of r.1.24(b).

31. Therefore, the evidence presented meets the requirements of r.1.24. As such, a non-judicially determined claim of family violence has been made under r.1.23.

    Has the applicant suffered family violence?

32. The letter from [Dr B] dated 31 January 2019 and his statutory declaration dated 12 February 2019 along with the statutory declaration of [Ms C] dated 14 January 2019 are consistent with the subsequent declarations provided by [Ms D] and [Ms E]. Each of these professionals report a consistent description by the applicant of the treatment perpetrated by [Mr A] and her consequent feelings and fear prior to the cessation of their relationship.

33. The applicant’s supplementary statement of 12 May 2021 elaborates on specific incidences of family violence and the fear for her mental and physical health caused by [Mr A]’s behaviour towards her.

34. The Tribunal accepts the applicant’s consistent written evidence which is supported by her professional health practitioners.

35. Having considered all of the evidence before it, the Tribunal is satisfied, for the purposes of r.1.23, that the applicant has 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.

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

37. 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.801.221(6)(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

38. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

    ·cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

    P. Maishman
    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.