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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1919314 (Migration)

Details

AGLC: 1919314 (Migration) [2021] AATA 2281
Case: [2021] AATA 2281
Decision Date: 6 May 2021

CaseChat Overview and Summary

This matter concerned an application for a Partner (Residence) (Class BS) visa by a German national. The applicant had previously been granted a Subclass 820 Provisional Partner visa, but his relationship with his sponsor had ceased. The applicant sought to establish that he had suffered domestic violence committed by his sponsor, a claim that was not judicially determined. The core dispute revolved around whether the applicant had satisfied the requirements of the relevant regulations concerning claims of domestic violence, particularly in relation to the assessment of an independent expert's opinion.

The primary legal issues before the Tribunal were whether the applicant had suffered domestic violence committed by the sponsor, as defined by the Regulations, and whether the opinion of the independent expert (IE) regarding the applicant's claims was properly made. Specifically, the Tribunal had to consider whether the IE had correctly applied the definition of "relevant domestic violence" and whether the IE's assessment was reasonable and procedurally fair. The Tribunal was required to determine if the applicant met the criteria for the visa grant under cl.801.221 of the Regulations, which hinged on the establishment of domestic violence.

The Tribunal reasoned that under r.1.23 of the Regulations, a non-judicially determined claim of domestic violence could be satisfied if the Minister or Tribunal was satisfied of the alleged victim's suffering, or if an independent expert's opinion was obtained. The Tribunal noted that "relevant domestic violence" included violence causing fear for personal well-being or safety. While acknowledging that the applicant and sponsor's relationship had ceased and they were divorced, the Tribunal focused on the domestic violence claim. The Tribunal considered the IE's report and the applicant's submissions challenging its validity. It found that the IE's assessment, based on clinical judgment and available evidence, was properly made, and that minor discrepancies in dates did not invalidate the report. The Tribunal also found that procedural fairness had been provided by the IE. Crucially, the Tribunal applied the principle that an IE's opinion, if properly made, must be taken as correct under r.1.23(1C).

Consequently, the Tribunal concluded that the applicant had not been taken to have suffered domestic violence committed by the sponsor under r.1.22. As the applicant did not meet this essential criterion for the visa, nor any alternative sub-criteria, the Tribunal affirmed the decision under review. The Tribunal therefore affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 responseThe 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. DECISION106. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.David BarkerMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.