1923311 (Migration)

[2022] AATA 2428

1923311 (Migration) [2022] AATA 2428 (27 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER:  1923311

MEMBER:Russell Matheson

DATE:27 June 2022

PLACE OF DECISION:  Sydney

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

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

Statement made on 27 June 2022 at 4:10pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased and non-judicially determined claim of family violence – abuse and intimidation – mental health – statutory declarations – now in second marriage – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24(1)(b), 1.25, 1.26, Schedule 2, cl 801.221(6)(b), (c)(i)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 August 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a [Age]-year-old male national of Bangladesh. He appeared before the Tribunal on 8 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current wife [Ms A]. 

3. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Relevant law

5. Relevantly to this matter the primary criteria include cl.801.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) 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.

6. Based on the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

7. Under reg 1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence, or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in reg 1.21 of the Regulations. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14).

8. In the present case the applicant is seeking to establish family violence based on a non-judicially determined claim of family violence.

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

9. Under reg 1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with reg 1.24 is provided.

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

11. 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 statutory declarations under r.1.26 of the Regulations by competent persons who hold different qualifications.

12. A statutory declaration under reg 1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).

13. The applicant has completed a statutory declaration (after 24 November 2012) under r.1.25 which set out the allegation of family violence and named his sponsor who he alleges committed relevant family violence. The applicant has also provided two statutory declarations by competent persons as per r.1.25.

14. The Tribunal is satisfied that the evidence presented meets the requirements of r.1.24. As such, a non-judicially determined claim of family violence has been made under r.1.23.

    Has the applicant suffered family violence?

15. During the hearing, the Tribunal questioned the applicant about his relationship with the sponsor and the family violence he claims to have suffered. The applicant claimed that during his marriage, he experienced family violence perpetrated by the sponsor in several ways that include:

    ·Emotional abuse;

    ·Verbal abuse;

    ·Physical abuse;

    ·Intimidation;

    ·Economic abuse: and

    ·Sexual abuse.

16. The applicant claims that his marriage was challenging, and he suffered different kinds of abuse during the relationship and that he feared for his safety and wellbeing. He stated that on one occasion in May 2017 his sponsor (ex-wife) had drinks with workmates at a local pub in [Suburb]. When the applicant’s ex-wife returned home late at night, she was in a drunken state and she started shouting abuse at him in front of his mother and brother saying that he was no good, earned less money than her and he was not satisfying her sexually (oral sex) and then slapped his face. He further stated that in July 2017 he had lent his brother $100 and when the sponsor found out about the loan the sponsor started throwing plates at him. The applicant stated that the sponsor constantly abused him verbally calling him names and belittling him in front of friends and his family and that he felt intimidated. The sponsor would not let him contact his mother or friends and she repeatedly threatened to contact immigration and have him deported. The applicant stated that this abuse resulted him having severe depression and anxiety and he has sudden flashbacks of the abuse and reported having low self-esteem and loss of confidence around other people. The applicant provided photographs of bruising to his face in June 2018. 

17. The applicant claims that because of family violence perpetrated by the sponsor, he developed symptoms of anxiety and depression and was treated by a registered psychologist and attended numerous sessions in the company of his current wife [Ms A]. The applicant presented evidence that because of domestic abuse and traumatic events during the relationship he is still stressed, has difficulty sleeping (nightmares of abuse), experiences unwanted-negative thoughts, has a lack of emotion, headaches, difficulty concentrating and completing tasks. He stated that he feels worthless, has libido problems, and is constantly agitated and fatigued. The applicant’s wife [Ms A] gave evidence that she was aware of the applicant suffering family violence at the hands of his sponsor during their relationship. She further stated that she and her previous husband were friends of the applicant and sponsor. [Ms A] stated that the applicant’s sponsor complained to her about the applicant’s lack of income compared to other friends and the sponsor used to belittle him in front of friends because he earned less than her. She further stated that the sponsor made fun of the applicant stating that she was the man of the house because she earnt more than him. [Ms A] also gave evidence that she had seen scratches and bruises on the applicant’s face in 2018 after they had argued but could not remember the exact date. She further stated that she believed the parties were in a relationship up until May 2019 because the parties joined her and her previous husband on a trip to the Gold Coast in April 2019 after they returned from Bangladesh. The applicant provided numerous photographs of the parties in the company of [Ms A] and her previous husband and other friends over an extended period from 2017 until August 2018 and photographs and screen shots in the company of each other sightseeing in Bangladesh in April 2019. The Tribunal found [Ms A]’s and the applicant’s evidence persuasive, detailed and consistent and found them to be credible witnesses. The applicant also provided declarations from another friend, [Ms B] and his brother [Mr C] an Australian citizen who were made aware of family violence occurring during the relationship but did not witness this happening firsthand. The Tribunal places little weight on the declarations as convincing evidence of family violence occurring between the parties. The applicant’s brother declared that the parties attended a family reunion in April 2019 in Bangladesh after their father died and believed the parties were still in a genuine and continuing relationship. He stated that the parties went on a holiday to the Gold Coast after returning from Bangladesh and after the holiday the sponsor decided that she wanted to live on her own. 

18. The Tribunal notes that the applicant was granted a Subclass 820 provisional partner visa on 21 September 2018.  There is evidence before the Tribunal concerning the various aspects of the relationship. The applicant provided with his application evidence that the couple operated a joint account, and this was used for day to day living expenses for payments of household bills and rent and the parties’ salaries were deposited into the account. The applicant provided bank statements for the period 1 July 2018 to 30 December 2018. The applicant described in his oral evidence to the Tribunal the couple’s living arrangements and confirmed they lived in the same household and shared domestic responsibilities and provided a copy of a tenancy agreement and rental application. A limited number of photographs and statements had been provided with the application to suggest that the couple represented themselves to others as being in a relationship and undertook limited joint social activities together with a select group of friends. The Tribunal acknowledges that the relationship had not been in existence for a very long time but within the time that it did exist, it appears that there was some degree of mutual commitment to the relationship and an attempt to make it work, particularly by the applicant. While the Tribunal shares the delegate’s concerns, including with the paucity of some documentary evidence of the relationship, the Tribunal is satisfied, on balance, that the applicant and the sponsor did have a genuine relationship before its breakdown. The Tribunal is satisfied the parties were validly married, had a mutual commitment to a shared life as a married couple to the exclusion of all others and they lived together or did not live separately and apart on a permanent basis.

19. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for the purposes of reg 1.22 of the Regulations.

    Conclusion

20. Based on the evidence provided, the Tribunal is satisfied a genuine relationship existed between the parties to begin with, and as the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl 801.221(6)(b) and (c). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

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

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

    Russell Matheson
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21 Interpretation

    In this Division:

    independent expert means a person who:

    (a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and

    (b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.

    non-judicially determined claim of family violence has the meaning given by subregulations  1.23(8) and (9).

    relevant family violence means conduct, whether actual or threatened, towards:

    (a)the alleged victim; or

    (b)a member of the family unit of the alleged victim; or

    (c)a member of the family unit of the alleged perpetrator; or

    (d)the property of the alleged victim; or

    (e)the property of a member of the family unit of the alleged victim; or

    (f)the property of a member of the family unit of the alleged perpetrator;

    that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

    statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.

    violence includes a threat of violence.

    …

    1.23     When is a person taken to have suffered or committed family violence?

    (1)For these Regulations, this regulation explains when:

    (a)a person (the alleged victim) is taken to have suffered family violence; and

    (b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.

    Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.

    Circumstances in which family violence is suffered and committed — injunction under Family Law Act 1975

    (2)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.

    (3)For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.

    Circumstances in which family violence is suffered and committed — court order

    (4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and

    (b)[…] order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.

    (5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — conviction

    (6)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:

    (a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or

    (b)recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.

    (7)For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — non-judicially determined claim of family violence

    (8)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.

    (9)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim is:

    (i)       a spouse or de facto partner of the alleged perpetrator; or

    (ii)      a dependent child of:

    (A)the alleged perpetrator; or

    (B)the spouse or de facto partner of the alleged perpetrator; or

    (C)both the alleged perpetrator and his or her spouse or de facto partner; or

    (iii)     a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and

    (c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:

    (i)       the alleged victim has suffered relevant family violence; and

    (ii)      the alleged perpetrator committed that relevant family violence.

    (10)If an application for a visa includes a non-judicially determined claim of family violence:

    (a)the Minister must consider whether the alleged victim has suffered relevant family violence; and

    (b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

    (c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

    (i)       the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

    (ii)      the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.

    (11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.

    (12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    (13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.

    (14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.