1919314 (Migration) - [2021] AATA 2281

1919314 (Migration) [2021] AATA 2281 (6 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1919314
MEMBER:David Barker
DATE:6 May 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 06 May 2021 at 8:00am
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Federal Circuit Court remittal – relationship ceased – family violence – non-judicially determined claim – requirements of r.1.26 – independent expert (IE) assessment – whether properly made – unreasonableness – procedural fairness – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 375A
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25, 1.26; Schedule 2, cl 801.221
CASES
Muliyana v MIAC (2010) 183 FCR 170
Sok v MIMIA (2005) 144 FCR 170
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 April 2013 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 12 February 2002 on the basis of his relationship with his sponsor, [Ms A]. At that time, Class BS contained Subclass 801 and 814. The only subclass in respect of which any claims have been advanced is Subclass 801 (the Subclass 801 visa). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
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.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.
The delegate refused to grant the visa in the context where the applicant was no longer in an ongoing relationship with the sponsor and the delegate was not satisfied that the applicant met cl.801.221, because they were not satisfied that the applicant had provided evidence in accordance with the regulations that he had suffered domestic violence committed by the nominating spouse.
The Migration Review Tribunal (MRT) affirmed the Subclass 801 refusal decision [in] January 2015. The applicant sought judicial review of the MRT decision and [in] March 2015 the Federal Circuit Court of Australia (FCCA) dismissed the appeal on the basis that the MRT referral to an IE and the resulting IE assessment was properly made.[1]
[1] [Citation redacted]
The applicant sought further judicial review and [in] April 2015 the Federal Court of Australia (FCA) made Orders by Consent that the appeal be allowed and that the proceedings be remitted to the FCCA for hearing and determination according to law. The FCA noted that:
The First Respondent concedes that the judgment of the Federal Circuit Court is affected by error of law, at [11] of the reasons for judgment. Contrary to [11], if an independent expert commits an error of law such that the legal questions asked by him or her did not relate to the Migration Regulations 1994 (Cth), then an error in the expert's decision will infect a decision of the Migration Review Tribunal if it proceeds to rely on the expert's erroneous decision.
[In] June 2019 the FCCA quashed the decision of the MRT made [in] January 2015 affirming the decision not to grant the applicant a Subclass 801 visa and remitted the matter to the Tribunal to determine the application according to law.[2] The FCCA noted at [59] that:
I have found that the Expert proceeded on an incorrect understanding of the expression “relevant domestic violence”. There are two consequences. The first is that the Expert’s opinion was not one arrived at according to law and, therefore, is not an “opinion” authorised by reg.1.23(1C). The second consequence is that, being an opinion that was not authorised by reg.1.23(1C), it was not an opinion on which it was open for the Minister and, on review, the Tribunal, to take as correct.
[2] [Citation redacted]
The Tribunal sent the applicant a letter on 20 March 2020 inviting him to attend a hearing on 29 April 2020 but subsequently postponed the hearing in the context of the onset of the COVID-19 pandemic.
On 13 July 2020 the Tribunal sent to the applicant a letter inviting him to attend a video hearing on 17 August 2020. The hearing invitation told the applicant that in the context of the ongoing COVID-19 pandemic, arrangements were available for him to appear before the Tribunal by video using Microsoft Teams. Given the applicant’s previous appearances before the Tribunal (differently constituted) were by videoconference from Canberra, the Tribunal took the view that it was appropriate to not further delay the orders of the FCCA, dated 13 June 2019, that the Tribunal determine the application for review according to law.
On 20 July 2020 the applicant responded to the hearing invitation by email and advised the Tribunal he would be unable to attend the hearing on 17 August 2020 and that he would get professional representation and that his legal team would shortly contact the Tribunal.
On 16 August 2020 the Tribunal received an email from the applicant’s representative, with submissions attached. The email stated that the applicant had elected not to attend the hearing. The attached submissions indicated the applicant has been seeking treatment for his mental health and requested that in conducting its review of this matter, the Tribunal take into account the information referred to in the submissions and the annexures attached to the submissions. The information referred to included:
- The Department of Immigration, Citizenship and Multicultural Affairs file for this matter;
- The information before the first constituted Tribunal;
- The audio recordings of the hearings conducted by the first constituted Tribunal on 19 November 2013, 27 March 2014, 27 June 2014 and 17 December 2014;
- The applicant’s statutory declaration dated 17 October 2013;
- [Dr B]’s statutory declaration dated 16 October 2013;
- [Ms C]’s statutory declaration dated 16 October 2013;
- The applicant’s statements of 30 January 2014, 21 May 2014 and 28 October 2014;
- The IE’s reports of 21 April 2014 and 8 September 2014;
- The first constituted Tribunal’s statement of decisions and reasons dated 9 January 2015;
- The FCCA’s reasons for judgement in [case citation redacted].
On 17 August 2020 the Tribunal sought clarification from the representative and on the basis of information provided confirmed that the applicant was not seeking an adjournment or postponement in relation to the hearing set down for 17 August 2020. The applicant’s representative confirmed that the applicant wished the Tribunal to proceed to make a decision in relation to the review on the basis of the information currently before it.
The Tribunal was satisfied that the applicant has authorised the representative to consent to the Tribunal deciding the review without his appearing before it, as the indication from the representative in the email dated 16 August 2020 that the applicant had declined the opportunity to appear before the Tribunal was consistent with the earlier indication provided by the applicant by way of his email dated 20 July 2020 that he would not appear before the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a national of Germany and is [age] years old. He first arrived in Australia in May 2000 on a 12-month [Visitor visa].
The applicant applied for a Subclass 820 Provisional Partner visa (Subclass 820 visa) on 12 February 2002. In documents associated with that visa application he claimed to have met his sponsor at Sydney Airport [in] August 2000. The applicant claimed he returned to Australia as a visitor on two further occasions to spend time with his sponsor, before they commenced cohabiting on 21 December 2001. The parties married [in] February 2002 in Canberra, ACT. The applicant was granted a Subclass 820 Provisional Partner visa on 24 April 2002.
As is discussed in the submissions received from the applicant’s representative,[3] on 19 September 2003, the Australian Government received an extradition request from the German Government in relation to an arrest warrant issued for the applicant. The arrest warrant was issued as a result of the applicant being charged with the crime of attempted incitement to murder his first wife sometime in March 1998. On 30 July 2007, the applicant was extradited to Germany to undergo a trial in relation to the charge of attempted incitement to murder. On 2 February 2009, the applicant was convicted of the charge of attempted incitement to murder and sentenced to a term of imprisonment of three years and six months. The applicant’s representative noted that the applicant claims he was falsely charged and convicted of the crime of attempted incitement to murder.
[3] Submissions received by the Tribunal from the applicant’s representative on 16 August 2020
The applicant returned to Australia [in] May 2010 upon completion of his term of imprisonment in Germany. The applicant was assessed against the “character test” under s.501 of the Act but a delegate of the Minister decided, on compelling and compassionate grounds, not to cancel the Subclass 820 visa. On 6 September 2011 the applicant applied for a Protection visa, but a delegate of the Minister refused that application.[4]
[4] [Citation redacted]
The applicant contacted the Department in January 2012 and provided a Form 1040 in which he claimed to be the victim of domestic violence perpetrated by his sponsor and her daughter. The applicant claimed that his relationship with the sponsor had ended and that they ceased cohabiting in September 2011. The applicant is seeking to establish domestic violence on the basis of a non-judicially determined claim of domestic violence. In support of the claim that he was a victim of domestic violence the applicant provided statutory declarations prepared by:
·The applicant, dated 7 February 2013;
·[Dr B], general practitioner, dated 31 January 2013; and
·[Ms C], registered psychologist, dated 7 February 2013.
The delegate considered that neither the report by [Ms C] nor [Dr B] met the requirements in r.1.26. In the view of the delegate neither the reports of [Ms C] or [Dr B] set out the evidence on which the competent person’s opinion was based or provided necessary detail of incidents of domestic violence committed by the sponsoring spouse. Accordingly, the delegate found that the statutory declaration did not meet the requirements of r.1.26 and therefore a claim that the applicant suffered domestic violence committed by the sponsor had not been made.
Based on this finding, and as the relationship between the applicant and the sponsor had ended, the delegate found that the applicant failed to meet the criteria in cl.801.221 and refused the visa. The delegate also considered the application under a Subclass 814 Interdependency visa, however, found that the applicant also did not meet any of the criteria for a grant of that visa.
The applicant applied to the MRT for a review of the Subclass 801 visa refusal decision on 26 April 2013 and appeared before the MRT for hearings in relation to his application for review on 19 November 2013, 27 March 2014, 27 June 2014 and 17 December 2014. In support of his application for review, on 24 October 2013, the applicant submitted further statutory declarations, one by the applicant made on 17 October 2013, and one by each of [Dr B] and [Ms C] made on 16 October 2013. Each of the statutory declarations was in the prescribed form (Form 1040).[5]
The previous independent expert (IE) assessments requested by the MRT
[5] [Citation redacted]
The MRT was not satisfied the applicant had suffered relevant domestic violence and as is required by the Act, sought the opinion of an IE. The IE prepared a report dated 6 January 2014. In preparing the report, the IE had consideration of the material provided in support of the application by the applicant as well as interviewing the applicant. The IE concluded that the applicant had not suffered relevant family violence.
The MRT referred the matter back to the IE, requesting the IE apply the appropriate definition of relevant domestic violence in respect of their findings, in accordance with the legislative provisions relevant to when the visa application was lodged. Around the same time a copy of the report was provided to the applicant pursuant to s.359A of the Act. In a statement dated 30 January 2014 and at a hearing before the MRT on 23 March 2014, the applicant made submissions as to why he felt the opinion of the IE was wrong.
The IE issued a further report dated 21 April 2014 and, in that report, gave the opinion that the applicant had not suffered relevant domestic violence. A copy of the second IE assessment report was provided to the applicant pursuant to s.359A of the Act. In a statement dated 21 May 2014 and at a hearing before the MRT on 27 June 2014, in relation to the second IE opinion, the applicant referred to various examples of actions which the applicant interpreted as acts of domestic violence committed by the sponsoring partner or her children against him.
The IE provided a further report and opinion, dated 8 September 2014, in which they took into account the further information provided by the applicant. The IE found that the additional material had not changed their opinion that the applicant had not suffered relevant domestic violence.
This further report was provided to the applicant pursuant to s.359A of the Act. The applicant provided a further response where he disputed the opinion of the IE. A further hearing was conducted by the MRT on 17 December 2014. The applicant attended. The applicant indicated that he disagreed with the opinion of the IE.
[In] January 2015, the MRT affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa. Findings made by the MRT in arriving at this decision included:
·On the basis of the evidence, the MRT was satisfied the applicant and the sponsor were in a spousal relationship and that this relationship has ceased;
·The MRT was not satisfied for the purposes of r.1.23(1)(f) that the applicant had suffered relevant domestic violence;
·The MRT was satisfied an opinion authorised by the Regulations, in that it was provided by an IE who was a person suitably qualified to make the assessment, who was an employee of a gazetted organisation for this purpose, was properly made.
·The IE provided the opinion that the applicant had not suffered domestic violence committed by the sponsor;
- on the basis of its finding that held that the IE’s opinion was properly made and therefore in accordance with r.1.23(1C), the Tribunal was required to take as correct the IE’s opinion that the applicant is not taken to have suffered domestic violence committed by the sponsor for r.1.22.
The applicant sought judicial review of the Tribunal’s decision to affirm the Department’s decision to refuse the visa grant. In [case citation redacted] the Court determined that the IE’s opinion was not one arrived at according to law and, therefore, was not an ‘opinion’ authorised by r.1.23(1C). The Court held that the threat by a sponsor to have the holder of a Subclass 820 Partner visa deported to his or her country of origin in circumstances where the holder is afraid or otherwise unwilling to return to his or her own country of origin, is capable by itself of constituting ‘relevant domestic violence’. By stating that threats of being deported from Australia could not by themselves constitute sufficient evidence of ‘domestic violence’, the IE manifested a misunderstanding of the meaning of ‘violence’ or of ‘relevant domestic violence’.
The current review
As indicated above, the applicant declined an invitation to appear before the Tribunal to give evidence and arguments in support of his claims. The Tribunal has therefore undertaken the review on the basis of submissions received from his representatives and information available on the Departmental and Tribunal files.
The s.375A Certificate
A delegate of the Minister issued a certificate purportedly pursuant to s.375A of the Act claiming that the disclosure of the documents described in the s.375A Certificate would be contrary to the public interest because the documents contain “information that could reveal departmental operational procedures and methodologies, including discussions related to international intelligence organisations, not considered to be in the public interest”. The existence of this Certificate is now known to the applicant, as the failure by the MRT to previously disclose its existence was one of the grounds raised in their judicial review application.[6]
[6] [Case citation redacted]
In considering whether the failure of the MRT to disclose the existence of the s.375A certificate and the documents and information that were the subject of the certificate to the applicant constitutes a denial of procedural fairness, the Court noted that it was bound to apply principles established in judgements of the High Court.[7] The Court found that:
According to the plurality judgment, the Tribunal’s failure to disclose a 438 certificate may give rise to jurisdictional error. Whether or not it does so depends on whether “materiality is put in issue” and, where it has been put in issue, the applicant discharges the burden that lies on him or her to show that the Tribunal’s failure to disclose the 438 certificate was in fact material.[8] Here “materiality” in relation to the Tribunal’s failure to comply with its obligation to disclose the existence of a 438 certificate denotes the affirmative answer to the hypothetical question: could compliance realistically have resulted in a different decision?[9] The “question of materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof”.[10]
[7] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (SZMTA) [2019] HCA 3
[8] [2019] HCA 3, [4]
[9] [2019] HCA 3, [45]
[10] [2019] HCA 3, [4]
In [case citation redacted] the Court was not persuaded the disclosure of the Certificate could have made a difference to the opinion the IE gave or to the decision the MRT made, as there were references in the report of the IEs, to information included in documents covered by the Certificate as to the applicant having been tried and convicted in Germany, and these reports had been provided to the applicant for his comments. The Court was satisfied that the applicant had an opportunity to give evidence and make comments about the conviction; and it is apparent the applicant did.
Due to the discussion of the s.375A Certificate in the judicial review in which the applicant participated, I did not consider it necessary to again disclose the existence of the Certificate or seek submissions in relation to the validity of the Certificate. As to the relevance of the documents covered by the Certificate, I have not relied on this information as I do not consider the circumstances of criminal charges or convictions against the applicant in another country, or a submission by an officer of the Department to a delegate of the Minister about whether the applicant satisfied the “character test” as provided for in s.501(1) of the Act[11] is material to the issue I am required to consider in the current review, which is whether the applicant’s relationship with the sponsor has ceased, and if so, whether he has been the victim of domestic violence.
Information provided by the applicant in support of his claim to have suffered relevant domestic violence
[11] [Citation redacted]

In the statutory declaration the applicant provided to the Department he claimed that after he returned to Australia after his period of incarceration in Germany his stepdaughter began acting in a destructive manner, destroying or damaging his property and also spreading lies about him, such as her claim that he had assaulted her. The applicant claimed he was financially exploited by the sponsor and that the cumulative impacts of these events was traumatic.[12]
[12] Statutory declaration of the applicant dated 7 February 2013
In the statutory declaration provided with his review application to the MRT, the applicant reiterated his claims as to the sponsor instigating his stepdaughter’s behaviour and also claimed his stepson had in an earlier stage of his relationship with the sponsor destroyed his property on a regular basis. He claimed that the sponsor also depleted his bank accounts and left him without funds to pay for expenses associated with his legal cases and a vacation he needed to take. The applicant claimed the events had a traumatic impact on him and left him broke.[13]
[13] Applicant’s Form 1040 statutory declaration dated 17 October 2013
In his evidence at hearings before the MRT and in assessment with the previous IE the applicant provided further detail as to the actions of the sponsor and his stepdaughter which he claimed had a traumatic impact upon him. He contended his relationship with his stepson improved somewhat as his stepson ceased destroying his property, or otherwise acting in an abusive way towards him. The applicant gave evidence that he continued to think the sponsor had encouraged his stepdaughter to act in an abusive way towards him. He provided further detail as to how the nominating spouse’s actions caused him financial hardship and also that he developed a fear that she would take action causing him to cease holding a valid visa permitting him to remain in Australia. He gave evidence that this caused him to fear that he would be forced to return to Germany where he had reasons to fear he would be at risk of harm.
In reports and statutory declarations provided by [Ms C], registered psychologist she provided the following information:
- The applicant was referred to the practice at which [Ms C] works for counselling regarding depression, and he has attended that practice since that day. This occurred at the time the applicant had temporarily left the family home. During counselling sessions, the applicant described the behaviour of the sponsor and her children towards the applicant.
- The applicant had been living with the sponsor since 2001. He was asked to provide money for various family luxuries, but he was not permitted to use these things without the sponsor’s permission, which was rarely forthcoming.
- The sponsor did not encourage the applicant to make social connections, but instead preferred the applicant to take care of things at home.
- The sponsor made it clear to the applicant he was not a priority in her life, constantly taking the children’s side despite clear evidence of their misdemeanours, such as destruction of his property.
- The sponsor was controlling of both the applicant’s activities and their finances. She made all of the budget decisions for the household.
- The stepdaughter’s behaviour towards the applicant was “increasingly bullying and aggressive, which [the applicant’s] wife openly encouraged and would not support him”.
- The applicant became fearful the sponsor would make allegations against him “as there had been some comments made to control his behaviour that threatened such allegations”, such as “in a period where she was demanding money, she told [the applicant’s] sister that she could allege he had threatened her daughter”.
- The applicant moved out “when things became extremely stressful, but was hoping they might be able to resolve some of the issues and reconcile”, but the sponsor “was unwilling to have a relationship where he was not a partner but in a subordinate role”.
- [The applicant’s] symptoms of depression included poor self-esteem, depressed mood, sleeping difficulties, low motivation and concentration. As time progressed, and since the end of the relationship; [sic] I have observed an increase in self-esteem and confidence, motivation and concentration. He exhibits none of the previous symptoms, and his mood has elevated. I therefore attribute his depression to the previous relationship issues.
- I believe that the relationship with his ex-wife meets the criteria for domestic violence: she controlled all of their activities and finance, he was not permitted to make social contacts nor have control of his own money, he was in fear and distress by her behaviour which included permitting the destruction of his property and implied and actual threats that she would cause trouble for him with authorities and immigration if he did not comply with her directions or demands.[14]
In the statutory declaration provided by [Dr B] in October 2013 the doctor declares that he had treated the applicant for severe symptoms of depression since November 2010 and that the applicant reported a long history of mental and psychological domestic violence by his wife, who controlled their finances and denied him his own financial means or social contacts. [Dr B] also declared that the applicant reported to him that if he refused to submit to the nominating spouse, she would threaten to have him deported by giving false information to immigration authorities or have him falsely accused of abusing her children. [Dr B] expressed the opinion that the “given facts as stated” earlier in his statutory declaration “clearly resemble domestic violence as per above mentioned definition”.
In [case citation redacted] the Court noted that in contending the opinion of the IE, accepted by the MRT as properly made, was not correct claimed that the IE failed to apply the correct definition of ‘relevant domestic violence’ by holding that neither a threat of deportation nor fear of returning to a country of origin could constitute or evidence ‘relevant domestic violence’. The Court quashed the MRT decision and in so doing followed existing authority in Sok v MIMIA (2005) 144 FCR 170 that ‘violence’ is not restricted to actual or threatened physical violence and held that:
The threat by a sponsor to have the holder of a subclass 820 visa deported to his or her country of origin in circumstances where the holder is afraid or otherwise unwilling of returning to his or her own country of origin, is capable by itself of constituting ‘relevant domestic violence’. By stating that threats of being deported from Australia could not by themselves constitute sufficient evidence of ‘domestic violence’, the IE manifested a misunderstanding of the meaning of ‘violence’ or of ‘relevant domestic violence’. The IE’s opinion was not one arrived at according to law and, therefore, was not an ‘opinion’ authorised by r.1.23(1C). Being an opinion that was not authorised by r.1.23(1C), it was not an opinion on which it was open for the Minister and, on review, the Tribunal, to take as correct.
CONSIDERATION OF CLAIMS AND EVIDENCE
On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The Tribunal accepts that the applicant and sponsor have not lived together since September 2011 and are legally divorced.
The issue to be considered, in the current review is whether the applicant satisfies the requirements of cl.801.221 of the Regulations as at 1 July 2005. This requires consideration as to whether the applicant has suffered domestic violence committed by the sponsor, within the meaning of the Regulations.
As at 1 July 2005, cl.801.221(6)(c)(i) of the Regulations provided that in circumstances whereby the visa applicant’s relationship with the sponsoring spouse had ceased, grant of the visa was contingent on the existence of certain circumstances including domestic violence committed by the sponsor against the applicant.
Division 1.5 of the Regulations provide criteria against which claims of domestic violence are considered. The application applied for a Partner (Residence) (Class BS) visa in February 2002. As such the provisions of Division 1.5 that apply to the application for review are those that existed prior to the significant amendments made to these provisions on 1 July 2005.
Under r.1.23 of the Regulations, a person is taken to have suffered or committed domestic violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant domestic violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant domestic violence. Relevant domestic violence is defined in r.1.21 and means violence against the alleged victim or his or her property that causes him, her or a member of the family, to fear for, or to be apprehensive about, his or her personal well-being or safety. These regulations are extracted in the attachment to this decision.
In the present case the applicant is seeking to establish domestic violence on the basis of a non-judicially determined claim of domestic violence.
Has a claim of domestic violence been made under the regulations?
A visa application is taken to include a non-judicially determined claim of domestic 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: r.1.23(1A).
The applicant in this case is seeking to rely on evidence referred to in r.1.24(1)(b) – namely, a statutory declaration under r.1.25 together with two statutory declarations under r.1.26 by competent persons who hold different qualifications.
A statutory declaration under r.1.25 must be made by the spouse or interdependent partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of domestic violence and the name of the person alleged to have committed the relevant domestic violence: r.1.25(2). There are different requirements if the domestic violence is alleged to have occurred to another person: r.1.25(3).
A statutory declaration by a competent person under r.1.26 must: be made by a competent person (as defined in r.1.21(1)); set out the basis of the person’s claim to be a competent person for the purposes of the Regulations; state that in the competent person’s opinion, relevant domestic violence has been suffered by a person; name the person who in the opinion of the competent person has suffered that relevant domestic violence; name the person who in the opinion of the competent person committed that relevant domestic violence; and set out the evidence on which the competent person’s opinion is based.
The applicant has provided a statutory declaration where he has set out his claims of having suffered relevant domestic violence committed by the sponsoring partner. The Tribunal is satisfied that this statutory declaration meets the requirements under r.1.25.
The applicant has also provided two statutory declarations by competent people, namely [Ms C], psychologist, dated 16 October 2013, and [Dr B], GP, dated 16 October 2013.
The Tribunal is satisfied that the applicant has provided statements by two competent people alleging the applicant has suffered domestic violence committed by the sponsoring partner. Therefore, statutory declarations meeting the requirements of r.1.25(2) and 1.26 have been provided.
The Tribunal is satisfied that evidence has been presented in accordance with r.1.24(1)(b) that domestic violence has occurred and therefore finds that r.1.23(1A)(b)(ii) is satisfied. As such, a non-judicially determined claim of domestic violence has been made under r.1.23(1A).
Has domestic violence been suffered?
The Tribunal acknowledges that domestic violence need not have caused or contributed to the cessation of the spousal relationship, nor need it have occurred before the relationship ceased, but it must have existed: Muliyana v MIAC (2010) 183 FCR 170. The Tribunal also acknowledges that ‘violence’ is not restricted to actual or threatened physical violence Sok v MIMIA (2005) and that the threat by a sponsor to have the holder of a Subclass 820 visa deported to his or her country of origin in circumstances where the holder is afraid or otherwise unwilling of returning to his or her own country of origin, is capable by itself of constituting ‘relevant domestic violence’ [case citation redacted].
The applicant has reported to [Ms C] and [Dr B] that the sponsor threated to allege he had threatened and abused her children. He has claimed that on the basis of the sponsor’s threat’s he developed a fear he would be forced to depart Australia and return to Germany where he would not be safe. The applicant submits that the sponsor’s threats to have him deported to Germany in circumstances whereby the sponsor knew of his fear of being returned to Germany constitutes relevant domestic violence in the form identified in [case citation redacted].
However, after carefully considering all of the evidence before it, the Tribunal was not satisfied for the purposes of r.1.23(1)(f) that the applicant has suffered relevant domestic violence. In accordance with r.1.23(1B)(b), the Tribunal sought the opinion of an independent expert.
On 23 November 2020 the independent expert provided an opinion that the applicant had not suffered relevant domestic violence. Where the independent expert opinion concludes that the applicant has not suffered relevant family violence, the Tribunal must invite the applicant under s.359A to comment or respond to the opinion. The report was provided to the applicant for comment on 17 December 2020. On 31 December 2020 the applicant’s representative requested an extension of time until 11 January 2021 in which to comment and respond to the particulars of information put to the applicant from the IE report pursuant to s.359A. The Tribunal consented to this request.
On 11 January 2021 the Tribunal received the written submissions in response to the s.359A letter, raising concerns as to the validity of the IE report. Concern regarding the validity of the report is, in the view of the Tribunal, a new determinative issue and the Tribunal sought clarification as to whether the applicant sought a further opportunity to appear before the Tribunal at a hearing to provide further evidence and arguments in support of his claims.
The applicant declined the opportunity to appear before the Tribunal to provide further evidence and arguments in support of his claims, but did request that his representative have the opportunity to appear before the Tribunal on his behalf as his representative to discuss the contention that the IE report is not properly made. The Tribunal consented to this request and the representative appeared before the Tribunal, on 22 April 2021. Further written submissions were then received from the representative on 23 April 2021.
Was the IE opinion properly made?
Regulation 1.23 requires that a valid independent expert’s opinion must be taken as correct, and once the Tribunal has determined that the expert’s opinion was properly made it is bound to accept it and find in accordance with it.[15] In considering the issue of validity of an independent expert opinion, Courts have applied authority which is applicable to assessing an expert opinion in matters involving opinions of Medical Officers of the Commonwealth (MOCs) in the context of the health criteria, holding that only an independent expert’s opinion which is ‘authorised by the Regulations’ must be taken as correct.[16]
Was the opinion given by an independent expert?
[15] Alameddine v MIAC [2010] FMCA 313 at [25]
[16] Silva v MIAC [2007] FMCA 1955 at [31] citing MIMA v Seligman [1999] FCA 117. See also Victorino v MIAC [2007] FMCA 1294 at [25] citing Seligman and Robinson v MIMIA [2005] FCA 1626
The definition of an independent expert is found in r.1.21(1), which states:
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 this definition, for the purpose of making independent assessments of non-judicially determined claims of family violence.
In this instance the IE report was prepared by a psychologist holding the qualifications of Bachelor of Arts, Master and PhD in Psychology and who is a fellow of the Australian Psychology Society. The IE is employed by LSC Psychology. The Tribunal has reviewed IMMI 13/023 which is the legislative instrument which specifies LSC Psychology is an organisation for the purposes of the definition of independent expert in r.1.21 of the Regulations in relation to claims of family violence referred to by the independent expert on or after commencement of this instrument. The Tribunal notes the instrument refers to ‘family violence’, but is satisfied that it is the appropriate legislative instrument for the purpose of r.1.21(1) and notes the explicit request in the Tribunal’s referral that the IE provide an opinion as to whether relevant ‘domestic violence’ occurred.
Accordingly, the Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is employed by, or contracted to provide services to, an organisation that is specified, in a Gazette Notice for this definition, for the purpose of making independent assessments of non-judicially determined claims of domestic violence.
Did the independent expert ask the right question?
In this instance the IE was asked to provide an opinion as to whether the applicant has suffered relevant domestic violence as defined in r.1.23(2)(b), which states:
violence against the alleged victim or his or her property that causes the alleged victim, or member of the alleged victim’s family, to fear for, or be apprehensive about, the alleged victim’s personal well-being or safety.
The M52 Domestic Violence Referral Form sent to LSC requested a Domestic Violence Assessment and opinion as to whether the alleged victim has suffered relevant domestic violence committed by the alleged perpetrator. The referral form provided, in a bold font, the following information:
Relevant domestic violence has the meaning given in regulation 1.23(2)(b) of the
Migration Regulations 1994:
a reference to relevant domestic violence is a reference to violence [including the
threat of violence] against the alleged victim or his or her property that causes the
alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety.
The Tribunal is satisfied that the IE was provided with information as to the question to be asked in the assessment, given the date of the visa application, through reference to the applicable definition of ‘relevant domestic violence’ contained in the provisions of Division 1.5 of the Regulations that existed as at 1 July 2005.
The report of the IE indicates that the applicant participated in two assessment interviews: an initial Skype interview with a duration of 104 minutes; followed by a further telephone interview with a duration of 18 minutes.
A review of the IE report indicates consideration by the IE of the following issues:[17]
[17] The Tribunal notes that the issues and information encompassed by the IE assessment report is not limited to those outlined in this section
·The inception and development of the relationship between the applicant and sponsor;
·The applicant’s concern regarding financial aspects of the relationship and the respective financial contributions and financial demands made by the applicant and sponsor during the period of the relationship;
·The circumstances of the applicant’s period on remand in [specified location] and after he was extradited to Germany;
- The applicant’s claim in relation to the behaviour of his stepchildren towards him and that the sponsor may leave the relationship as a consequence of the tension in the relationship between him and his stepchildren;
- Whether the reported behaviour of the stepchildren was age appropriate behaviour for children and adolescents, or behaviour of a more intentionally insulting and deliberate nature;
- Whether arguments between a biological parent and stepparent about the children would, if the nature of their relationship outside the context of the conflict over the children, would be reasonably linked to a fear that he was at risk of harm from the sponsor;
- The applicant’s claim in relation to developing a fear the sponsor would make trouble for him if their relationship ceased and as a consequence, he would be forced to depart Australia and return to Germany;
- The circumstances whereby the relationship ceased.

In the IE assessment the IE has specifically addressed the following question:
·In the IE’s opinion, did the conduct in the incident cause the alleged victim, or a member of the alleged victim’s family, to fear for, or to be apprehensive about, his or her own personal wellbeing or safety?
The IE assessment report, under a section ‘IE to add any additional information relevant to the claim of domestic violence’ considers at length the applicant’s claimed fear of returning to Germany.
After reviewing the scope of issues considered by the IE in their assessment, the Tribunal is satisfied that they reflect the IE considering the appropriate definition of relevant domestic violence, including components of that definition highlighted by [case citation redacted], namely that the threat by a sponsor to have the holder of a Subclass 820 Partner visa deported to his or her country of origin in circumstances where the holder is afraid or otherwise unwilling of returning to his or her own country of origin, is capable by itself of constituting ‘relevant domestic violence’.
Having formed the view that the IE had asked the right question, the Tribunal proceeded to consider the concerns raised in the response to the s.359A letter and whether these result in an IE opinion not being properly made.
Point 1 of the s.359A response – Did the IE mischaracterised/misunderstood the applicant’s oral evidence at the interview?
In the s.359A response it is contended that the IE statement, at page 13 of the report, ‘[the applicant] has been strong in his documentation that his wife threatened to deport him, allegedly knowing he was scared of returning to Germany. On interview he could not recall the form of words used[18]’ mischaracterised / misunderstood the applicant’s evidence. In support of this contention the s.359A response referred to page 12 of the IE report, the IE identifies [the applicant]’s recollection of the words used in the context of the deportation issue as follows: ‘[the applicant] said that his partner had been threatening to end the relationship and allegedly threatening to have him charged or at least an AVO being placed on him in regards to the protection of her daughter. It is [the applicant]’s claim that this would have resulted in him being deported and he is claiming he is a victim of domestic violence on the basis that his partner has threatened to have him arrested or at least terminate the relationship, and this would inevitably mean that he would have to return to Germany. He states he has a fear of returning to Germany.’[19]
[18] Point 1a of response to s.359A letter, dated 11 January 2021
[19] Point 1b of response to s.359A letter, dated 11 January 2021
The extract from page 13 of the IE report referred to in the s.359A response: ‘[the applicant] has been strong in his documentation that his wife threatened to deport him, allegedly knowing he was scared of returning to Germany. On interview he could not recall the form of words used’ does not show the complete second sentence of this section of the report, which in its entirety states ‘On interview he could not recall the form of words used and at one point said he was not forced to borrow money from his family’. The sentence preceding the extract referred to in the s.359A response states that the applicant claimed the sponsor ‘threatened to end the relationship should he not provide financially by asking his family for money’ and the sentences in this section following the extract further comments on the IE’s assessment of the evidence in relation to the financial aspects of the parties’ relationship.
In forming a view as to whether the IE made adverse credibility findings on the basis of misunderstood or mischaracterised oral evidence at interview, the Tribunal has reviewed the entire sentence, rather than the extract highlighted in the s.359A response, within the context of the sentences preceding and following it. The Tribunal is not persuaded the reference to ‘On interview he could not recall the form of words used’ necessarily refers to the applicant’s lack of recall of threats made by the sponsor to have him ‘deported’. The Tribunal is satisfied that when viewed in the context of the whole sentence and the section within which it is placed, a reasonable interpretation of the IE’s comments is that they primarily refer to the applicant’s recollection of discussion between the sponsor and him about money.
The Tribunal notes there is the conflation of claims about money and the sponsor threatening to deport him and difficulty recalling words used in page 13 of the report. As noted by the representative when they appeared before the Tribunal on 22 April 2021, these issues are also discussed on page 8 of the report where the IE reports that ‘[the applicant]’s sponsor worked as [an occupation]. As a consequence there were financial issues in the relationship, but he did use the money from his family for living expenses. Nonetheless he said his wife would threaten throughout this time that if he did not ask his family for money she would “revoke the visa” which would then result in his expulsion. He said he could not recall how it led to this nor, when pressed, could he remember the form of words his partner used’.
When viewed in light of the comments from page 8, the Tribunal is satisfied the highlighted extract from page 13 of the IE report is not a misunderstanding or mischaracterising of oral evidence given regarding either oral evidence given at hearing regarding financial aspects of the parties’ relationship or threats made within the context of financial factors.
Whilst there is reference to the applicant being strong in his documentation that his wife threatened to deport him, the Tribunal is not persuaded this is a mischaracterising or misunderstanding of the evidence available to the IE.[20] There is sufficient evidence of the applicant’s evidence and arguments with respect to this aspect of the applicant’s claims in the documentation available to the IE. The Tribunal is not persuaded the reference to this being ‘strong documentation’ is unreasonable or inaccurate.
[20] Documents provided with the IE referral include: Legal Submissions to the AAT 1919314, dated 16 August 2020; Tribunal 1919314 M52 Referral; Initial: Forms 1040 statutory declarations in support of the 1919314 referral: statutory declaration relating to family violence Form 1040, [the applicant] 7 February 2013; statutory declaration relating to family violence Form 1040, [Dr B] GP 31 January 2013; statutory declaration relating to family violence Form 1040, [Ms C] Registered Psychologist 7 February 2013; Letter of the applicant to the MRT 1306118, dated 24 April 2013; statutory declaration of [Dr B] sworn 16 October 2013; statutory declaration of [Ms C] sworn 16 October 2013; statutory declaration of the applicant sworn 17 October 2013; applicant’s submissions to Tribunal 1306118, under s.359A, 30 January 2014, 21 May 2014, 28 October 2014; Independent Expert referrals by Tribunal 1306118: 21 November 2013, 31 March 2014 and 15 August 2014; Independent Expert’s Final Report to Tribunal 1306118 at 8 September 2014, Parts A-BC-D at 8 September 2014; [case citation redacted]; [case citation redacted]; Decision Record of Refusal to Grant a BS-801 Partner visa, 10 April 2013; Decision of Tribunal 1306118, 9 January 2015; Recordings of the Hearings of Tribunal 1306118: 10 October 2013, 19 November 2013, 23 March 2014, 27 June 2014, 17 December 2014
The Tribunal is satisfied the extract from page 12 of the IE report[21] refers to the applicant’s view that the sponsor’s reported threats to end the relationship and to have him charged or at least an AVO being placed on him in regard to the protection of her daughter would have resulted in him being deported. The Tribunal considers this extract to be where the IE is providing an account of the applicant’s self-assessment of the implications flowing from the alleged threats made by the sponsor. The Tribunal considers this extract to be a reflection of information given to the IE at interview. The aforementioned extract is followed by a sentence in which the IE expresses their opinion that: ‘The fundamental issue that appears to have led to the dissolution of the relationship was [the applicant]’s belief that his step-children were against him, and that their mother took their side over his complaints, and that when he made his complaints she at first ignored them, and then threatened to end the relationship should he persist in them’.[22] The Tribunal is not persuaded the IE is misunderstanding or mischaracterising the applicant’s oral evidence by providing an account of information provided to him by the applicant during the assessment interviews followed by the IE’s clinical formulation. This would appear to the Tribunal to reflect the appropriate role and function of a duly qualified and authorised IE.
[21] Referred to in point 1b of the s.359A response
[22] Page 12 of IE report
In point 1c of the s.359A response it is submitted that ‘demonstrably’ the IE’s findings to the effect that the applicant could not recollect the form of the words used in the context of the deportation issue formed a basis for adverse credibility findings against the applicant. Page 14 of the IE report is referred to in this section of the s.359A response.
The Tribunal considers it important to note that the IE report asks questions in relation to specific identified possible domestic violence factors, for example ‘Financial Abuse’, or ‘Verbal abuse, threats to deport when he complained about the children’; and for an explanation of the response provide by the IE. The nature of the IE report format provides for these specific factors to be explained, leading up to the overall IE opinion.
In reviewing page 14 of the IE report, the Tribunal notes that it contains part of the IE explanation as to why, in relation to the issue of Financial Abuse, they responded ‘No’ to the question ‘In the IE’s opinion, did the conduct in the incident cause the alleged victim, or a member of the alleged victim’s family, to fear for, or to be apprehensive about, his or her own personal wellbeing or safety?’. The initial part of the IE’s explanation is the extract highlighted in point 1a of the s.359A response where the IE identified the applicant’s claims that the sponsor threatened to end the relationship if he did not provide financially by asking his family for money and that the sponsor threatened to deport him, knowing he was scared of returning to Germany. As discussed previously in this decision record, the following sentences in this section, which flow on to page 14, discuss evidence to support a contention the sponsor misused funds and an example of the applicant not being able to recall details about a ‘putative holiday’. The Tribunal acknowledges that there is an indication the IE is assessing the applicant’s claims in light of the information which was available to him and the Tribunal accepts this would have influenced his clinical formulation. This section is where the IE is asked to explain his opinion and the Tribunal is not persuaded the IE’s explanation demonstrates that he has misunderstood or mischaracterised the applicant’s oral evidence and other information cited by the IE in this explanation of his opinion with regard to the Financial Abuse factor. The Tribunal is not persuaded by this submission. In the context of alleged financial demands and alleged threats made to revoke visas if financial demands were not met, the IE has not in the view of the Tribunal misunderstood or mischaracterised oral evidence at interview, as discussed in the IE report.
Page 14 of the IE also provides an explanation as to why, in relation to the factor ‘Verbal abuse, threats to deport when he complained about the children’ the IE responded ‘No’ to the question ‘In the IE’s opinion, did the conduct in the incident cause the alleged victim, or a member of the alleged victim’s family, to fear for, or to be apprehensive about, his or her own personal wellbeing or safety?’ The Tribunal notes the IE has made a reference to ‘[the applicant] claims his wife would threaten to end the relationship (in his written material she allegedly said she would have him deported), but on interview he could not recall her form of words’. The Tribunal accepts this presents as a basis on which the IE opines that the applicant ‘appears to exaggerate the difficulties he faced’. However, the Tribunal is not persuaded this led the IE, as contended in the s.359A response, to disbelieve the applicant’s oral evidence in relation to the deportation issue.
The IE has provided a multifactorial explanation for his view that verbal abuse and/or, threats to deport when he complained about the children did not in his opinion cause the applicant to fear for, or to be apprehensive about, his or her own personal wellbeing or safety. In the view of the Tribunal, to selectively highlight one component of this explanation runs the risk of mischaracterising the IE explanation. The IE does not state that he disbelieves the applicant, he provides reasons as to why he considers the applicant to be an assertive and combative person who appears to exaggerate the difficulties he faced. The Tribunal is not persuaded this is an example of the IE opinion not being properly made. When viewed in its entirety, the explanation in this section of the IE report, in the view of the Tribunal, demonstrates the IE doing the task required of him, namely explaining the basis of his response to questions put to him through explaining the reasoning behind his clinical assessment.
In point 1d of the s.359A response it is submitted that that a further misunderstood / mischaracterised aspect of the applicant’s oral evidence in relation to his explanation, regarding the continuation of the relationship, resulting in the IE making adverse credibility findings, is evident at the IE’s finding at page 14 that the applicant appeared to “exaggerate the difficulties he faced because ‘For instance, if he was so scared of his wife why he continued to have a relationship with her following his going to a refuge is unexplained’.
It is submitted, at point 1e that the IE’s discussion of the explanation for maintaining the relationship, as detailed at page 12, demonstrates the misunderstanding / mischaracterising of the applicant’s oral evidence (referred to in point 1c) is material to the finding that the applicant had not suffered relevant domestic violence committed by the sponsoring partner. The Tribunal does not accept this contention. It is open to and indeed the role of the IE to assess and form an opinion on the basis of the information available to them, from the background documents, information provided by the applicant in their assessment interview and the IE’s clinical observations. The opinion of the IE that the applicant appeared to “exaggerate the difficulties he faced’ is one that it is open for the IE to make and it is not for the Tribunal or other parties to suggest a different assessment should be made on oral evidence provided by the applicant at interview. It is for the IE to assess and opine with regard to the explanation given at interview by the applicant as to why he maintained a relationship with the sponsor.
The contention the IE formed adverse credibility findings against the applicant, in the view of the Tribunal, is ascribing a concept that is legalistic in nature and not intrinsically relevant to the clinical formulation undertaken by an IE in the proper performance of their role, where they provide an opinion and explain the basis of that opinion. The Tribunal is not persuaded the IE opinion was not properly made because the IE may have formed a view the applicant exaggerated the difficulties he faced. It is open to a clinician, such as an IE to form a clinical view on a factor such as this, on the basis of their synthesis of the range of factors that they consider in undertaking the requested assessment and providing the requested opinion.
In point 1f of the s.359A response it is submitted that the IE’s misunderstanding / mischaracterising of the applicant’s oral evidence were critical and material to the IE’s findings to the effect that the applicant had not suffered relevant domestic violence committed by the sponsoring partner. Whilst acknowledging the assessment of the applicant’s explanation for maintaining the relationship after he had moved to a refuge, and evidence given in relation to the deportation issue, would in conjunction with other factors be material to the IE’s findings to the effect that applicant had not suffered relevant domestic violence committed by the sponsoring partner, the Tribunal is not satisfied that the IE opinion was not properly made due to the IE forming an adverse view of the applicant’s oral evidence because of misunderstood, or mischaracterised oral evidence at interview. This is because the Tribunal is not persuaded that when viewed in the context of the full sections in which highlighted extracts are drawn, it has been established that the IE misunderstood, or mischaracterised oral evidence at interview.
Point 2 of the s.359A response - Is the IE opinion not properly made because of a finding to the effect that the applicant’s decision to remain in a relationship with his former spouse notwithstanding his claims of domestic violence against her is an indication that he was not fearful or apprehensive of his personal well-being or safety unreasonable?
Point 2a of the s.359A response refers to page 13 of the IE report, where the IE surmises that the applicant’s evidence to the effect that he returned to the marital home regularly following his re-location to the refuge did ‘not sound like a person fearing for his life.’ In relation to this factor, it is submitted that the applicant’s decision to remain in the relationship despite his relocation to a shelter cannot be used as a basis for a finding that threats of deportation in the context of his particular circumstances could not result in fear or apprehension for his personal well-being or safety. Indeed, recent domestic violence studies demonstrate that over 50% of partner violence victims continue to remain in a relationship with their abuser despite experiencing anxiety or fear due to the violence. A reference was provided in support of this submission.[23]
[23] >
The Tribunal accepts the referred to extract is located on page 12 of the IE report and has carefully reviewed this page of the IE report and notes it is located within a paragraph which states:
I then had a further conversation with [the applicant] in regard to his leaving the marital home in 2010 and going to a refuge. [the applicant] agrees that he remained living in the refuge from September 2010 until the relationship formally ended in October 2011. I asked him in that context how it was then that he claimed that the relationship was ongoing if he wasn’t living in the home? He said that in fact he was in the home as well as at the refuge. He said the refuge was only walking distance from his home and when his daughter was at school or visiting her father on the weekend he would go back to his house. This does not sound like a person fearing for his life [italics added]. On the weekend when the daughter was not there, he would stay in the house overnight. I asked him in that context if he was so scared of his wife threatening to have him arrested for allegedly harming his daughter or threatening to harm his daughter and therefore ending the relationship why it was that he continued to maintain the relationship, particularly given that he was living in a refuge nearby? [the applicant] said, “this is the issue of love and it makes a person blind”. He said, “when you are in love the weird thing is you don’t think straight”. He said he had the “same experience with his first wife” so despite not acting on his fears, he continued to maintain the relationship and said that he was “in denial”. It is hard to imagine that he was in denial during that period of time, firstly because from sometime in September 2010 he claims that he started seeking psychiatric assistance into the problems that he was having in his adjustment with his partner, and secondly he was living in a refuge.

In point 2b of the s.359A response it is submitted that the applicant’s decision to remain in the relationship, despite his relocation to a shelter cannot be used as a basis for a finding that threats of deportation in the context of his particular circumstances could not result in fear or apprehension for his personal well-being or safety. The Tribunal has reviewed the IE report and is satisfied that the opinion provided by the IE that relevant domestic violence that causes the alleged victim, or a member of the alleged victim’s family, to fear for, or to be apprehensive about, his or her own personal wellbeing or safety has not occurred is based on a careful and comprehensive analysis and assessment of the information available to the IE.
In the view of the Tribunal the IE has undertaken their assessment mindful that threats of deportation in the context of the applicant’s particular circumstances could result in fear or apprehension for his personal well-being or safety. This is an issue discussed at length by the Court in [case citation redacted] in a document provided to the IE. A review of the Reasons for Decision section of the IE report in my view demonstrates that the IE has a clear understanding that ‘The threat by a sponsor to have the holder of a subclass 820 visa deported to his or her country of origin in circumstances where the holder is afraid or otherwise unwilling of returning to his or her own country of origin, is capable by itself of constituting “relevant domestic violence”’ and that this can be seen by the IE comment:
[The applicant] claims he is a victim of domestic violence because his wife allegedly
threatened to end their relationship and thus he would be required to return to
Germany, a place he claims he would be at risk of harm should that occur. At the heart
of [the applicant]’s claim is an unfortunate reality. It is an obvious conclusion that if
sponsorship ends, before the spousal visa is confirmed, then the applicant must leave
the country. The critical issue is whether the sponsor, knowing this, used threats to
end the relationship as a form of coercive control? If the sponsor is aware that the
applicant fears going back to their own country, threats to end the relationship may
reflect the application of a power imbalance and cause them to reasonably fear for or
become reasonably apprehensive for their safety or well being.
[The applicant]’s case rests on his belief that by threatening to end the relationship and
thereby having him expelled to Germany the sponsor knew that in so doing he was
fearful of returning to Germany because of his genuine fear that he would be punished
or that he would be in some way severely harmed to return to Germany. This threat is
linked to claims that the spouse required him to financially support the family, and that
should he complain about the children’s behaviour, she would end the relationship.
Paradoxically it is alleged she also threatened to cause trouble for him if he left the
relationship. This is despite the fact that he returned to Germany quite voluntarily in
2000. It is also despite the fact that he was forced by the German Justice System to
return to Germany in 2008 and spent a year and a half in Germany (mostly in gaol) with no harm befalling him.
With respect to this issue, the Tribunal does not accept the IE opinion is not properly made because the IE found that threats of deportation in the context of the applicant’s particular circumstances could not [emphasis added] result in fear or apprehension for his personal well-being or safety, because the Tribunal is not persuaded the IE made any such finding.
As to the reference in the s.359A response that recent domestic violence studies demonstrate that over 50% of partner violence victims continue to remain in a relationship with their abuser despite experiencing anxiety or fear due to the violence. The Tribunal has reviewed the reference from the Australian Bureau of Statistics regarding Partner Violence – in Focus: Crime and Justice Statistics. This document discusses statistics from the 2016 Personal Safety Survey on women’s experiences of domestic violence and physical assault by a partner. The Tribunal acknowledges a significant percentage of women physically assaulted by men return to the home they shared with their violent male partner after temporary separation. The Tribunal has no cause to find the IE is not aware of this phenomenon and also of the circumstances where men in violent or abusive relationships with women may make similar choices and act in similar ways.
The Tribunal has considered the further reference provided by the applicant’s representative on 22 April 2021,[24] which is a study which presents statistics for family, domestic, sexual violence, physical assault, partner emotional abuse, child abuse, sexual harassment, stalking and safety. The Tribunal accepts that this study by the ABS found that ‘over two in five men (41% or 196,200) who experienced emotional abuse by a current partner experienced anxiety or fear due to the emotional abuse.’ The Tribunal has no cause to find the IE is unaware of the impact of the male experience of domestic violence or the extent of it within Australian society. The Tribunal is not persuaded that the fact that men are victims of domestic violence and that in the particular circumstances of this case the IE found that a particular man, the applicant, was not a victim of relevant domestic violence does not demonstrate that the IE report was not properly made.
[24] >
As to the contention at point 2b of the s.359A response that the IE clinical view to the effect that the applicant’s decision to remain in the relationship, notwithstanding his claims of domestic violence against her is an indication that he was not fearful or apprehensive of his personal well-being or safety is unreasonable, the Tribunal is not satisfied that the applicant has demonstrated why this is the case. As discussed elsewhere in this decision record, in the view of the Tribunal it is for the IE to undertake their assessment and form their opinion. A review of the IE report in my view demonstrates that the IE assessed evidence and made findings on the basis of their knowledge and clinical judgement. The contention that a finding made by the IE on the basis of their clinical judgement is unreasonable, in the view of the Tribunal reflects disagreement with the IE finding rather than an indicator that the IE opinion was not properly made.
Corrections to the IE report suggested in the s.359A response
The Tribunal accepts that the applicant and sponsor were married [in] February 2002, rather than as reported by the IE, 18 February 2002. The Tribunal considers this discrepancy of little consequence and does not establish that the IE report was not properly made.
The Tribunal accepts the applicant travelled to Australia in December 2000 and lived with his former spouse until he returned to Germany in March 2001. He returned again in December 2001 and applied for a partner visa in February 2002. I am not however persuaded a reading of page 7 of the IE report demonstrates, as contended that the IE attempts to cast the applicant as a partner visa opportunist by excluding his stay in Australia from December 2000 to March 2001 and focusing on his return to Australia in December 2001 and his subsequent application for the partner visa in February 2002. I do not accept any minor discrepancy or error with regard to dates provided by the IE attempts to cast the applicant as a partner visa opportunist. As I do not accept this contention, I do not accept this claimed factor demonstrates that the IE opinion was not properly made.

100. The Tribunal accepts that the sponsor initiated divorce proceedings resulting in the formal dissolution of the parties’ marriage. As to whether this effectively ended the relationship and whether it is in direct contradiction to the IE’s findings at page 13 of the IE report which state in part ‘especially since it was he who left the relationship (sought refuge) but then continued to attend on his wife for a further seven months. Through all that time, despite claiming that his wife threatened to call the police on him if he left her, no such threat ever eventuated’. The Tribunal notes that a couple’s marital relationship may break down and effectively end long before one of the parties initiates formal divorce proceedings. The Tribunal is not persuaded one of the parties to a marriage taking the action to initiate divorce proceedings establishes that they were the person who effectively ended the relationship. The Tribunal notes that the IE discussion on page 13 deals with the IE view that the applicant ‘presents as a person who is quite forthright and quite determined in seeking what he sees as justice and appropriate response to his grievances’. The IE’s findings in page 13 are further to comments made regarding the applicant’s physical whereabouts through moving to a refuge in September 2010 and subsequently returning on occasion to the marital home. It is not apparent to the Tribunal the findings contained on page 13 of the IE report are in direct contradiction to the sponsor having initiated divorce proceedings in relation to the parties’ marriage.
Was procedural fairness provided by the independent expert?
101. In relation to the issue of whether the IE provided the applicant with procedural fairness and disclosed any potential adverse third party information or, if the information was confidential, at least the gist of it, the IE states that their opinion is based upon the evidence available at the time of assessment. The IE stated that if relevant new evidence is submitted before the application is finally determined, this opinion can be reconsidered (Use Part C of this form). The IE stated that they understand that their opinion will be made available to the visa applicant and may form the reason or part of the reason for granting or refusing the visa application.
102. The Tribunal is satisfied that all relevant information was provided to the independent expert to allow them to make a proper assessment of the claims made by the applicant. The applicant was allowed to provide all relevant material to the independent expert. The Tribunal is satisfied procedural fairness was provided by the IE in this matter.
103. The Tribunal has carefully considered the IE opinion, as well as the report explaining this opinion and the submissions the Tribunal has received outlining concern with regard to whether the IE report was properly made. The Tribunal has formed the view the IE has given an opinion properly made.
104. Under r.1.23(1C) the Tribunal is required to take as correct an independent expert’s opinion, properly made. Therefore, the Tribunal finds that the applicant is not taken to have suffered domestic violence committed by the sponsor under r.1.22.
105. There is no evidence that there is a child of the relationship between the applicant and the sponsor. Given the above conclusion that the claim of domestic violence has not been established, the applicant does not meet the requirements of cl.801.221(6)(b) and (c) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.
DECISION
106. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
David Barker
Member