1915629 (Migration)

[2023] AATA 319

1915629 (Migration) [2023] AATA 319 (17 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1915629

MEMBER:David Crawshay

DATE:17 January 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 cl.100.221(4)(c) of Schedule 2 to the Regulations.

Statement made on 17 January 2023 at 11:47am

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – relationship ceased – allegations of family violence – non-judicially determined family violence claim – statutory declaration by suitably qualified practitioners – independent expert’s opinion – decision under review remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 100.221; rr 1.21 – 1.25

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 30 May 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 19 August 2015 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). The primary criteria must be satisfied by at least one applicant. 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221. While the delegate was satisfied that the applicant was the spouse of the sponsor prior to the breakdown of the parties’ relationship, the delegate found that the applicant had not established that she had suffered family violence committed by the sponsor. The delegate based this finding on a report by an Independent Expert (first IE Report) which in turn found that the applicant had not suffered family violence.

4. The applicant appeared before the Tribunal on 14 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, [named], as well as a friend, [named]. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. The family violence provision of the Migration Regulations operates as an exception to the requirement that an applicant must be the spouse or de facto partner of the sponsor at the time of decision under cl.100.221(2)(b). The relevant requirements are to be found under cl.100.221(4)(a), (4)(b) and (4)(c)(i), which are cumulative requirements.

8. Clause 100.221(4)(b) states that “[t]he applicant meets the requirements of this subclause if … the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased”. On the basis of the evidence in front of it, the Tribunal accepts that the applicant was in a spousal relationship with the sponsor and that this relationship has ceased. In this regard, it sees no reason to disturb the delegate’s finding.

9. The applicant therefore meets cl.100.221(4)(b). The issue is now whether she meets cl.100.221(4)(c)(i) in relation to family violence.

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

10. The issue that now 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. If she has suffered such family violence, then she will satisfy the requirements of cl.100.221(4)(c)(i).

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. The Tribunal notes that the violence, or part of it must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).

12. In the present case there has been no evidence to show that the applicant wishes to put forward a claim of judicially determined family violence. Therefore, she does not meet rr.1.23(2), (4) or (6).

13. Under r.1.23(8), a visa application is taken to include a non-judicially determined claim of family violence where a joint undertaking to a court has been made by the alleged victim and alleged perpetrator. There is no evidence in the form of a joint undertaking and therefore the applicant does not meet r.1.23(8).

14. A visa application is also taken to include a non-judicially determined claim of family violence where, among other things, the applicant presents evidence in accordance with r.1.24. This includes a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes in a legislative instrument (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). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3) that do not apply here.

16. The Tribunal has seen a Form 1410 Statutory Declaration for family violence claim signed by the applicant and dated 5 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. The applicant has submitted two such pieces that purport to substantiate her claim of family violence. The first of these is a statutory declaration by [Psychologist A] dated 13 December 2018. [Psychologist A] stated that she is a psychologist who is registered with AHPRA although she did not give her registration number. Upon further research the Tribunal was able to locate her in the AHPRA register of practitioners. The second is a statutory declaration from [Nurse A] dated 2 January 2019. [Nurse A] stated that she was a registered nurse 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 [Psychologist A’s] declaration according to the requirements for a psychologist, and [Nurse A’s] declaration according to the requirements for a person who is a registered as a nurse.

18. Dealing firstly with [Psychologist A’s] declaration, it stated that the applicant attended four sessions from August-to-December 2018. In her declaration, [Psychologist A] stated her opinion that the applicant was subjected to family violence and that this family violence appeared to have impacted her mental health and day-to-day functioning. The Tribunal accepts that [Psychologist A’s] declaration satisfies the evidentiary requirements, as she stated in her opinion that the applicant was subject to family violence, detailed the reasons for this opinion, and identified the sponsor as the alleged perpetrator.

19. In relation to the declaration from [Nurse A], it stated that the applicant had sought treatment for arm and back injuries, where it was observed that she had bruising on examination. The Tribunal accepts that [Nurse A’s] declaration satisfies the evidentiary requirements, as she identified the sponsor as the alleged perpetrator and detailed physical injuries.

20. 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?

21. At hearing, the Tribunal questioned the applicant on the circumstances of her claim of family violence. However, through this questioning it formed the view that it was not satisfied she had suffered relevant family violence based on the following concerns:

    ·The applicant gave testimony at hearing that conflicted with earlier information either given by her or by others in relation to alleged instances of family violence in July 2015 following the parties’ wedding.

    ·The applicant gave testimony at hearing that conflicted with information she had earlier given in relation to an incident that was said to have occurred in May 2017.

    ·The applicant claimed at hearing to have been forced to have sex with the sponsor without her consent when this claim was at odds with her evidence to the previous Independent Expert.

    ·The applicant raised a claim at hearing of the sponsor telling her that he would break her neck, and the Tribunal had concerns about why this blatant and extreme threat of physical force was not raised before.

    ·Some pieces of evidence outlined in the applicant’s Form 1410 that would appear to be relevant to the claim of family violence – including photographs of “bashing and beating” – still had not been provided by her.

22. On the basis of these concerns, the Tribunal decided to refer the applicant’s claim of family violence to an independent expert for that expert’s opinion. On 1 April 2022, the Tribunal sent a referral of the same date to this independent expert along with several documents that it had made the applicant aware of at hearing and afterwards.

23. On 17 January 2023, the Tribunal received the completed opinion of the independent expert dated 16 January 2023. The independent expert found that instances of physical, psychological and sexual abuse met the criteria for relevant family violence. The expert found that the sponsor’s conduct during these instances of physical and psychological abuse caused the applicant to reasonably fear for, or be reasonably apprehensive about, her own wellbeing or safety. Although no dates were given about when the abuse took place, the Tribunal accepts based on the overall findings of the Independent Expert and on its earlier finding as to the genuineness of the relationship before its cessation that the abuse occurred during the period of the applicant’s claimed relationship with the sponsor.

24. 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.

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

26. The applicant therefore meets the requirements of cl.100.221(4)(c)(i) which is an alternative requirement under cl.100.221(4)(c).

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

    decision

28. 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 cl.100.221(4)(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.