1934706 (Migration)

1934706 (Migration) [2021] AATA 4487 (22 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1934706
MEMBER:James Lambie
DATE:22 October 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa

Statement made on 22 October 2021 at 12:52pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Federal Court remittal – relationship ceased and sponsorship withdrawn – non-judicially determined claim of family violence – statutory declaration and specified evidence – physical, psychological and financial abuse – further claims of physical abuse made in post-hearing submissions – limited documentary or corroborative evidence provided – claimed injuries minor and may have occurred by accident – eyewitness accounts inconsistent – independent experts’ findings of no relevant violence – applicant’s response to findings – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1958 (Cth), rr 1.21, 1.23, 1.24, 1.25; Schedule 2, cl 801.221
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 and Border Protection on 6 July 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) (Subclass 801) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 May 2013 on the basis of his relationship with his sponsor, [Mr A]. At that time, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
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 on the basis that the applicant did not meet cl.801.221 because the applicant had advised the delegate that his relationship with his sponsor has ceased and that he is no longer the spouse or de facto partner of his sponsoring partner, and the delegate was not satisfied the applicant met any of the alternative criteria for the grant of the visa. The applicant did not make any claims or provide any evidence to the delegate regarding the death of his sponsor, any incidence of family violence, or the existence of a child of the relationship.
The first Tribunal affirmed the delegate’s decision and the Federal Circuit Court of Australia dismissed the application for judicial review. That decision was set aside by the Federal Court of Australia and the matter is now before the Tribunal, differently constituted, pursuant to an order of the Court.
The applicant appeared before the Tribunal on 17 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms B] and [Ms C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with [Mr A], the visa sponsor has ceased, and he has been the victim of family violence.
Whether the parties are in a spouse or de facto relationship
[The applicant] and [Mr A] were married in Thailand [in] November 2012. They applied for a Partner (Temporary) (Class UK) (Subclass 820) visa on 16 May 2013. This visa was granted on 9 April 2014 on the basis that the delegate was satisfied the parties were in a de facto relationship. On 14 May 2017, [the applicant] notified the Department that his relationship with [Mr A] had broken down and the sponsorship was subsequently withdrawn. The Partner (Permanent) (Class BS) (Subclass 801) visa was refused by the delegate on 6 July 2017.
[The applicant] gave evidence to the Tribunal that he and [Mr A] met on the Grindr app in about early 2012 and moved in together in about June of the same year. They registered their relationship under the Relationships Act 2011 (Qld) [in] July 2012. [Mr A] was renting a residential property in [Suburb 1] in his own name and [the applicant] assisted with rent payment as and when he could. In about May 2013, the couple opened a [business] in Brisbane City, which employed about 15 staff. [Mr A] put up the money for the enterprise and [the applicant] managed it on a full-time basis. The lease was held by a family trust created and organised by [Mr A]. [The applicant] told the Tribunal he was a beneficiary under that trust.
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 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.
Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in r.1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).
In the present case the applicant is seeking to establish family violence on the basis of a non-judicially determined claim of family violence.
Has a claim of family violence been made under the regulations?
Under r.1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with r.1.24 is provided.
The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116).
A statutory declaration under r.1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).
Under IMMI 12/116, the statutory declaration must be accompanied by at least two of the types of evidence listed at Schedule 1 to the instrument.
[The applicant] provided a statutory declaration dated 26 August 2020. He declares that he was in a relationship with [Mr A] from April 2012 to May 2017 and that, throughout the relationship, he experienced physical, psychological and financial abuse from him. In respect of physical abuse, he claims:
·an incident on 26 April 2013, in which [Mr A] pushed [the applicant]’s head towards a bowl of food resulting in a chopstick injury to his eye. [The applicant] obtained medical attention for a subconjunctival haemorrhage. He produced a photograph of the injury posted to [social media] the same day;
·an incident on 7 September 2013, in which there was a physical altercation between [Mr A] and [the applicant] at the [business], in the course of which [Mr A] tore out [the applicant]’s earring, causing injury to his earlobe.
Both of these events are mentioned in a letter dated 22 February 2018 from [Dr D], a clinician at [a] Hospital, confirming [the applicant]’s attendance and treatment on the dates claimed. The description of the injuries is confined to their physical presentation. [The applicant] claims that [Mr A], on both occasions, talked him out of making a complaint to the police
[The applicant]’s statutory declaration claims there were at least 15 other physical altercations that occurred at home and at least 10 other physical altercations that occurred at the business. He claims there was an incident at the business, witnessed by other staff, in which [Mr A] pushed him into a wall, causing impact to his head. He claims there was another incident in which [Mr A] menaced him with a knife. None of these incidents required medical intervention and none were apparently the subject of any police complaint.
[The applicant] claims that verbal and psychological abuse was a feature of the relationship from the beginning. He claims that [Mr A] sought to control him by restricting his diet and clothing, and his social, cultural and family activities. He claims that [Mr A] sought to prevent him sending money to his parents and would embark on angry tirades on a variety of issues directed at him both at home and at work.
[The applicant] claims that [Mr A] controlled the financial aspects of the [business], keeping the profits and paying [Mr A] only an allowance of between $100 and $300 per week. He claims that when [Mr A] sold the business in 2016, he kept all of the sale proceeds. As a result of this, [Mr A] claims, he was placed in a position of financial dependency on [Mr A] which deterred him from leaving the relationship before May 2017.
I am satisfied that [Mr A]’s statutory declaration meets the requirements of r.1.25(2).
[The applicant] produced statutory declarations from [Ms E] (dated 12 March 2018) and [Ms C] (dated 26 August 2020 and 15 October 2020), which attest to aspects of [the applicant]’s claims but do not purport to be the types of evidence specified in the instrument. This evidence is discussed further below.
[The applicant] also produced:
·Statutory declarations from [Ms B] (dated 12 March 2018 and 15 October 2015)
·A letter from [Ms F] dated 24 April 2018;
·A statutory declaration from [Ms G] dated 2 May 2018; and
·A psychological family violence assessment report by [Dr H] dated 19 May 2021.
[Ms B], in her statutory declaration of 12 March 2018, describes herself as employed as a Women’s Advocate with [Organisation 1], and the president of [Organisation 2]. She claims that [Organisation 2] was established in 2010 and ‘focuses on assisting Thai citizens who are not citizens of Australia who are suffering hardship in health, isolation, housing, mental health and domestic and family violence.’ Her statutory declaration indicates that [Organisation 2] is not registered as an unincorporated association. No evidence of the existence of [Organisation 2] was provided to the Tribunal and the Tribunal’s inquiries did not produce results. [Ms B]’s statutory declaration is not evidence of the type specified by the instrument, there being no report by a family or domestic violence crisis centre on the organisation’s letterhead and [Ms B] not claiming to be a member of the Australian Association of Social Workers or a person who is eligible to be a member of the Association. However, her statutory declarations do attest to aspects of [the applicant]’s claims within her own experience and are considered further below.
The letter from [Ms F] does constitute, in my view, a letter made by a family or domestic violence crisis centre on the organisation’s letterhead. Although vaguely worded, it does state that [the applicant] has made a claim of family violence, that he was subject to family violence and identifies [Mr A] as the alleged perpetrator. The letter is very vague on the details of any evidence used to form the opinion, but it would appear that [Ms F] was persuaded by [the applicant]’s demeanour. I accept that this letter constitutes evidence specified in the schedule to the instrument for the purposes of r.1.24(b).
[Ms G] is a Mental Health Social Worker who practices in [Suburb 2]. In her statutory declaration, she describes the narrative given to her by [the applicant] of his relationship with [Mr A]. The narrative is consistent with the details in [the applicant]’s statutory declaration. She states that, in her opinion, [the applicant] was subject to family violence (physical, verbal, emotional and financial) at the hands of [Mr A]. I accept that this statutory declaration constitutes evidence specified in the schedule to the instrument.
I also accept that the report of [Dr D] described in paragraph 19 constitutes evidence specified in the schedule to the instrument.
[Dr H]’s report was provided in response to the independent expert’s report and not for the purposes of meeting the evidentiary requirements under r.1.24(b). However, should it have been required for those purposes, it would plainly meet the specification.
The applicant has submitted at least three documents meeting the specification. Therefore, the evidence presented meets the requirements of r.1.24. As such, a non-judicially determined claim of family violence has been made under r.1.23.
Has the applicant suffered family violence?
[The applicant] gave oral evidence to the Tribunal at the hearing on 17 September 2020. He was taken through his statutory declaration. It was noted and put to him that, despite his claims that the relationship had lasted into 2017, he had included no specific claims of physical violence after 2013. He responded that there were many other instances but, because they did not result in visible injuries or hospital visits, they were not recorded. The Tribunal noted that the documents he had previously provided to the Tribunal and the Department showed that he and [Mr A] corresponded extensively electronically, that he seemed to take many photographs, and that he was an active user of social media. It was put to him that he should be able to particularise, at least in a general way, the regular conflict he claims to have been a feature of the relationship. He undertook to make some searches of his various communications and social media accounts.
In his post-hearing statutory declaration (dated 15 October 2020), [the applicant] made additional claims of physical violence. One specific incident was alleged to have occurred on or about 21 August 2012, in which [Mr A] struck him on the back of the head causing his face to hit the corner of a wardrobe, resulting in a laceration to the outer corner of his eye. A [social media] post with a photograph of the injury dated 21 August 2012 was produced. The post includes untranslated Thai text. [The applicant] also makes allegations of numerous other physical incidents occurring at home and at the [shop], involving slaps to the face, hits to the back of the head, pinching, choking, throwing objects and hair pulling. Given the very extensive text messages supplied in respect of the original partner visa application and for the previous Tribunal application, it is very surprising that none of these claimed injuries or incidents, or even oblique references to them, appear to have been the subject of communication between the parties.
The post-hearing statutory declaration makes further claims of psychological abuse and threats by [Mr A], including three instances of infidelity, abusive language, the incident with the knife referred to in paragraph 20, the threatened disposal of their wedding photographs, disposal of his food and deliberate reckless driving. I consider it very surprising that none of these claimed incidents can be supported by text messages, especially those relating to infidelity. There is no reference to them in the statutory declaration of [Ms G] or the letter of [Ms F], being the professional evidence upon which [the applicant] relies. In my view, the credibility of these further claims is also adversely affected by being made only after the hearing in 2020, despite there being numerous earlier opportunities, and after observing the quality of the testimony provided by his supporting witnesses.
[The applicant] was taken to his statutory declaration in respect of his claims to have been subjected to financial abuse by [Mr A]. At paragraphs 41 to 45 of his statutory declaration of 26 August 2020, he claims that, despite being told by [Mr A] that he was a co-owner of the business, he was only paid an allowance of between $100 and $300 per week. He told the Tribunal that the business had a weekly turnover of about $10,000 and a profit of about $200,000 a year. This, he said, was retained by [Mr A]. Further, he had claimed that [Mr A] sold the business in 2016 and had kept all of the sales proceeds. The Tribunal put to [the applicant] that he had produced no relevant financial documents, other than his tax returns. The tax returns indicated that he was paid in the region of $50,000 per year. He claimed that the tax returns were lodged by [Mr A] and that they did not reflect his actual income. It was put to [the applicant] that the Tribunal may prefer the evidence of the tax returns over his vague claims which were not supported by documentation that might reasonably be expected. No bank records of any description were produced. In his post-hearing statutory declaration, he claims that he requested details of the joint account from the [bank] but was told that no such account could be found. He did not submit documentary support for this claim.
[The applicant] gave evidence in relation to the sale of the business. The Tribunal had suggested that [the applicant] had had a continuing shareholding in the business post-sale, which arose from a misreading of a handwritten statutory declaration from the purchaser, and it is accepted that this did not occur. However, in the absence of any material that might suggest what, if any, interest was ever held by [the applicant] and under what terms or, indeed, as to the proceeds of sale, the Tribunal can draw no conclusions that this amounted to financial abuse.
The Tribunal heard evidence from [Ms C], who was taken to her statutory declaration of 26 August 2020. She claims to have first met [the applicant] and [Mr A] in about February 2014 when she started working at the [business]. In her statutory declaration, she claims that [Mr A] was verbally abusive to all of the staff, but to [the applicant] in particular. In her statutory declaration she says:
The most memorable circumstance I cannot forget was when [Mr A] came to the shop one day and argued with [the applicant]. He pushed [the applicant] away very hard and he hit the wall. I and the other staff had to separate them. I tried to calm [the applicant] down because he just cried, drowning in tears and devastated. This was not the only time that I saw [the applicant] cry and depressed because of their relationship.
Furthermore, another day I and others observed [the applicant]’s right ear was torn and covered with blood. We queried about it and took him a long time to calm down. [Mr A] was having a fighting argument with [the applicant] , which was not only this particular injury but we also noticed bruises on [the applicant]’s arms many times while we were working together.

In her oral evidence, [Ms C] gave a detailed description of the ear injury, including the detail that it was [the applicant]’s right ear and that she saw the blood. The Tribunal put to [Ms C] that she must have been mistaken concerning the injury to [the applicant]’s ear, given that the photograph of it was taken in September 2013 and she did not meet [the applicant] until some five months later. She said that the injury she saw may have been a similar injury inflicted on a different occasion. [The applicant], however, later confirmed that there had been only one such injury.
[Ms C], in her post-hearing statutory declaration (dated 15 October 2020), claims she made a mistake about observing the ear injury and that she had heard about this incident from numerous other staff but did not witness the actual assault herself. She claims she was confused, having witnessed other physical altercations and seen the scarring. I do not accept [Ms C]’s statement in this respect, she having twice made detailed descriptions of the alleged event under oath. I do not accept her as a credible witness and consider that her further allegations of physical and verbal abuse are not reliable.
The Tribunal heard from [Ms B]. [Ms B] was taken to her statutory declaration of 12 March 2018. In that statutory declaration, she claims to have met [the applicant] and [Mr A] as a couple in 2010. She had already met [the applicant] earlier that year as a participant in [Organisation 2]. She and [the applicant] are also members of a Thai [activity group] and she says that she would often meet him to [do the activity] together.
In her statutory declaration, [Ms B] claims to have witnessed controlling behaviour on the part of [Mr A]:
I met [Mr A] in 2010. [Mr A] is substantially older than [the applicant] and I observed there to be a power imbalance in the relationship due to the age difference and [Mr A]’s behaviours. I have witnessed [Mr A] used to grading and controlling behaviours towards [the applicant]. For example I have observed [Mr A] ordering [the applicant] around by telling him where to go and what to do. [The applicant] was always very submissive when [Mr A] was telling him what to do.
Within the timeframe of the relationship, I had observed [Mr A] becoming increasingly dismissive, isolating [the applicant] and becoming more aggressive to him on a weekly basis.
The Tribunal put to [Ms B] that she must have been mistaken about meeting the parties together in 2010, they themselves having not claimed to have commenced their relationship until 2012. She maintained that her recollection was correct, but that she may have met them separately at the Thai temple at this time. Given that both she and [the applicant] gave evidence as to [Mr A]’s antipathy to Thai food and culture, I consider it unlikely that [Mr A] was there independently.
In her post-hearing statutory declaration, [Ms B] claims that, having discussed the timing with [an activity group] member, she now recalls that she first met [the applicant] in August 2013, at the time the [activity group] was formed. She first met [Mr A] at [a group activity] at the Thai temple on 6 October 2013. She says that the claims to having met the parties in 2010 was an honest mistake due to the meeting being many years ago. However, I note that her initial statutory declaration was made less than five years after the date on which she now claims to have met the parties and the 2010 claim was maintained in the face of questioning by the Tribunal.
In her 2018 statutory declaration, [Ms B] claims to have visited [the applicant] at the [business] on at least two occasions and:
observed [the applicant] to complete all business tasks including cleaning, washing and maintaining the shop from early in the morning until late at night.
I do not consider this evidence reliable, there being no suggestion that [Ms B]’s visits to the shop lasted from early morning to late at night. It is also inconsistent with the other evidence, from [the applicant]’s text message exchanges and [Ms C]’s testimony that staff undertook the cleaning duties and that [the applicant] was a manager or supervisor. [Ms C]’s express evidence was that it was not [the applicant]’s job to clean the shop and that his arguments with [Mr A] concerned his failure to get the staff to do their jobs better. It is clear from [Ms B]’s evidence that much of what she relates has been conveyed to her by [the applicant]. For example, the detail she provides in her statutory declaration of 12 March 2018 concerning the claimed financial abuse could only have come from [the applicant].
In several other respects, [Ms B]’s evidence is inconsistent with the claims made by [the applicant]. [The applicant] claimed that [Mr A] forced him to quit [Ms B]’s [activity group]. [Ms B] did not mention this, although her evidence indicated she was quite invested in the [activity group]. [The applicant], when questioned, qualified his claim that [Mr A] had forced him to quit and said that when he was having trouble with [Mr A] he would not be able to go and [do the activity] with the [activity group]. He said that, as a result, the [activity group] broke up. [Ms B] made no such claims and, in fact, refers to conversations with [the applicant] at [group activities] throughout 2015 and 2016.
The Tribunal asked [Ms B] about the physical abuse [the applicant] claimed to have suffered at the hands of [Mr A]. Her statutory declaration of 12 March 2018 makes no mention of any physical abuse or injuries. She and [the applicant] were friends on [social media], yet she had no knowledge of any injuries. She made no claim that [Mr A] prevented [the applicant] from seeing her and, to the contrary, her evidence was that she saw [the applicant] frequently throughout the period of the relationship. [The applicant], she says, confided in her about the couple’s finances and [Mr A]’s suspected infidelity. She makes no mention of bruises or other signs of physical injury, which [Ms C] told the Tribunal were frequently apparent. When asked about this, [the applicant] said that he spoke to [Ms B] about a lot of these things, but not about the injuries. He said that she did not ask him about them in any event. I do not consider his evidence reliable in this respect, given that he posted photographs of his injuries on [social media].
While I consider that [Ms B] has sought to be truthful in her evidence, it seems clear that most of what she alleges about the relationship has been conveyed to her by [the applicant]. I consider her evidence in respect of [the applicant]’s treatment at work to have been embellished, and her account of [Mr A]’s verbal behaviour to have been strongly coloured by what she was told by [the applicant].
The Tribunal considered the statutory declaration of [Ms E] of 12 March 2018. [Ms E] did not appear before the Tribunal. She claims to have worked with [the applicant] at the [business] from 2013. [Ms E]’s statutory declaration is brief and lacking in specifics, other than two undated instances:
· An incident in which [Mr A] “pushed [the applicant] away very hard and [the applicant]’s head was about to hit the wall. As mentioned earlier when [Mr A] had a mood swing, [Mr A] abused [the applicant] verbally and physically. Then a few hours later, [Mr A] said sorry and said that [Mr A] wouldn’t do that again. However, this happened again and again.”
· An incident in which [Mr A] made a disparaging, and possibly racist, remark about Thai food.
Because [Ms E] was not called to give evidence, it is impossible to know whether the pushing incident actually resulted in [the applicant]’s head hitting the wall, in which case it may be the same incident referred to in [Ms C]’s evidence. However, it is remarkable that she would have been unaware of the earring incident which, according to [Ms C]’s evidence was well known to all the staff, and at which time [Ms E] was likely to have been working with [the applicant].
[Mr A]’s claimed disparaging comment about stir-fried pork liver was possibly offensive, even racist, but I do not consider it sufficient to constitute an example of domestic or family violence, even were I to consider the evidence of it reliable. In view of the fact that [Ms E], on her account, had been working with [the applicant] since, or soon after, [Mr A]’s acquisition of the [business], her failure to mention in any particularity any of the other, more serious, claims made by [the applicant] leads me to the view that her statutory declaration does very little to support a finding that domestic or family violence has occurred.
With his post-hearing statutory declaration, [the applicant] provided screenshots of an exchange on WhatsApp with [Mr A] which records an argument between the parties in relation to a financial matter. It would appear from this exchange that [Mr A] used more aggressive language and that [the applicant] was more placatory. However, the screenshots are undated and do not record the full conversation. A further screenshot is provided in relation to a different conversation, also undated and incomplete. I note that these were provided in purported compliance with the Tribunal’s request that electronic records could be submitted to support or document [the applicant]’s claims. No attempt has been made to give any context or provenance to the screenshots and I therefore give them very little weight.
The statutory declaration also claims:
I have looked for written conversations with family or friends in which I had discussed my relationship with [Mr A], specifically the abuse I experienced.
I could not find any record of such conversations.
Any discussions had with verbal, and I hardly spoke about the abuse with others.
I do not consider these paragraphs to be consistent with the evidence of [Ms C] or [Ms B], or with [the applicant]’s posting of photographs of his injuries to [Social media]. [Ms C] and [Ms B] both gave evidence of having listened to [the applicant] at length and having sought to console him. While I consider, in both cases, their evidence to be unreliable as to the existence of domestic or family violence, there do appear to be close relationships between them and [the applicant] which includes the sharing of intimate details. In both cases, they have provided evidence that could only have had [the applicant] as their source, whatever the truth of what they were told.
On the basis of all of the evidence, I am not satisfied that [the applicant]’s account of the incidents of domestic or family violence are reliable. I am not satisfied that either of the witnesses who gave oral testimony can be relied upon to support [the applicant]’s claims. The other material, including the reports of the professionals, rely entirely on a narrative conveyed to them by [the applicant], some considerable time after the claimed occurrence. There is a range of documentary material that [the applicant] might use to support or corroborate its claims that has not been produced. As I explained to [the applicant] and his representative at the hearing, the failure to produce readily available corroborative material might result in an adverse finding in respect of his credibility.
The most persuasive evidence [the applicant] produced consisted of the photographs of his injuries and the hospital report. I note that the injuries in both cases are quite minor and equally explicable as occurring by accident or assault. The medical report makes no attempt to identify the means by which the injuries were incurred. In all the circumstances, I am not satisfied that they were the result of domestic or family violence.
Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of r.1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert. On 22 February 2021 the independent expert, [Ms I], provided an opinion that [the applicant] had not suffered relevant family violence.
The independent expert noted:
considerable inconsistencies with respect to [the applicant]’s claims within the collateral information provided to the Department of Home Affairs and Administrative Appeals Tribunal. This adverse information was put to [the applicant] and he was provided with an opportunity to respond. While [the applicant] responded to all questions posed by the IE and did not present as defensive, his responses were vague and failed to provide clarification of the apparent discrepancies. [The applicant] acknowledged inconsistencies and understood that his failure to disclose information and is provision of inconsistent information would reasonably contribute to concern with respect to his credibility. [The applicant] acknowledged that he was advised by his various legal representatives to be honest but stated that he had not informed his lawyer that he had withheld information and what information he did in fact withhold. It is noted and was acknowledged by [the applicant] that he was informed by the AAT via an interpreter on numerous occasions that he was required to present all evidence in order for a decision to be made about his case. The IE agrees with the opinion of the prior IE, [Dr J], that while [the applicant] stated that he did not want to cause trouble for the [sponsor], he proceeded with his current application, thus rebutting his contention that he withheld information from the AAT to protect the [sponsor]. It is suspected that due to his experiences of hurt, perceived mistreatment with respect to the dissolution of the relationship, and uncertainty with respect to his visa status, [the applicant] overstated aspects of relational discord as experiences of family violence.
[The applicant]’s apparent inability to clarify the noted inconsistencies, as well as his acknowledgement that he purposely misled, misreported and withheld information from the Department and AAT, raises considerable concerns regarding [the applicant]’s credibility and therefore the authenticity of his claims of family violence. Therefore, it is my opinion that the described conduct did not cause [the applicant] to reasonably fearful, or to be reasonably apprehensive about, his own well-being or safety is defined by the Migration Regulations 1994.
The report of the IE was put to [the applicant] in a letter pursuant to s.359A of the Act, dated 11 March 2021, inviting him to comment or respond. His response, in a letter dated 19 April 2021, was to the following effect:
i.he disputes having denied to the IE raising concerns with the amount of money he was paid throughout the relationship;
ii.he disputes having told the IE that he was amenable to the financial arrangements;
iii.he submits that a finding that his fear was of dissolution of the relationship, rather than for his safety, was incorrect;
iv.he disputes having told the IE that the sponsor did not do anything with the knife, and maintained that the sponsor threatened him with it;
v.he disputes there is a contradiction in his evidence in relation to his income tax returns;
vi.he disputes a finding that the correspondence from the tax office was sent to him at his new address;
vii.he disputes the IE is finding in relation to his being named as executor and beneficiary of the sponsors will and describes the suggestion that the sponsor shared his financial means with him as nonsensical;
viii.he disputes the IE’s finding that his approach to his finances was illustrative of his pattern of agreeableness rather than a response characterised by fear or apprehension;
ix.he denies having told the IE that he was amenable to the sponsor’s requests;
x.he denies having told the IE that he sent money to his family in Thailand because the sponsor could not do anything;
xi.he denies having told the IE that the sponsor’s conduct was not a big problem;
xii.he disputes having told the IE that he preferred to stay in the relationship, and seeks to add that he did not want to start a new relationship as he was held back by mental and emotional issues;
xiii.he denies having told the IE that, after the first 12 months of the relationship, the alleged abuse was predominantly verbal and denied further physical abuse;
xiv.he claims the IE ignored his account of his fear of being attacked and subjected to escalated physical assault, and did not recall being asked to elaborate further on the emotional impact of the sponsor’s conduct;
xv.he disputes the IE’s finding as to the inconsistencies of his accounts of physical assault;
xvi.he disputes being unable to recall further incidents of physical assault;
xvii.he claims that not all evidence was properly considered by the IE;
xviii.he does not understand the IE’s conclusion regarding the objectivity of the reports of [Ms F] and [Ms B];
xix.he disputes the IE’s finding that the hospital attendance records do not indicate concerns of the injuries originating in domestic violence;
xx.he disputes the relevance of apparent inconsistencies detected in his evidence as his knowledge of the business finances;
xxi.he disputes the IE’s finding that his reports of alleged abuse by the sponsor and inconsistent across his submissions and seeks the IE to identify the reports;
xxii.he disputes the IE’s conclusion that his charitable donations suggested access to financial means and autonomy in financial decision-making;
xxiii.he disputes the IE’s identification of inconsistencies as to the sponsor’s attitude to Thai food;
xxiv.he objects to the IE’s finding that he did not respond to repeated requests from the Department of Home Affairs and AAT regarding collateral information;
xxv.he disputes the IE’s finding that text messages between him and the sponsor do not evidence incidents of family violence or abusive conduct;
xxvi.he does not understand the relevance of the IE’s statement that he did not report his alleged experiences to the Department of Home Affairs;
xxvii.he objects to the IE’s finding that he denied experiencing physical abuse during the first AAT hearing;
xxviii.he disputes the IE’s finding that he had escalated his claims of abuse over time;
xxix.he disputes the IE’s finding that his income was significantly higher than he reported;
xxx.he disputes the finding that he has provided a shareholding in the [business] when it was sold to a new owner in 2016;
xxxi.he further disputes the IE’s characterisation of his account of the knife incident;
xxxii.he submits that he did not report the abuse to the Department because he was unaware of the family violence provisions prior to his visa being refused;
xxxiii.he objects to the finding that he did not report the cause of his injuries when he sought medical treatment from the hospital;
xxxiv.he objects to the reception of the statutory declaration from a Mrs Palmer;
xxxv.he disputes that he acknowledged that the Department prompted him about the family violence consideration;
xxxvi.he disputes the IE’s assessment that he initially reported that the first 12 months of the relationship were okay;
xxxvii.he describes the IE’s assessment of his account of psychological abuse as nonsensical;
xxxviii.he disputes that he continued to cohabitate with the sponsor after the relationship ended in 2017;
xxxix.he claims the IE’s finding, that he had overstated aspects of relational discord is family violence, is nonsensical;
xl.he disputes the IE’s assessment that he was unable to explain how the sponsor’s alleged behaviours caused him to reasonably fear for, or to be reasonably apprehensive about, his well-being or safety;
xli.he disputes the IE’s finding that accounts of the abusive behaviour in the first 12 months of the relationship were inconsistent;
xlii.he objects to the IE’s finding as to the timing of his family violence claims;
xliii.he questions the IE’s finding that it is atypical of a victim of physical abuse to not recall the details pertaining to their experience;
xliv.he submits that the IE’s identification of inconsistencies and [the applicant]’s inability to clarify them as grounding an opinion that he did not experience actual or threatened physical abuse is unreasonable;
xlv.he disputes the IE’s finding that his evidence was inconsistent in relation to alleged financial abuse;
xlvi.he disputes the IE’s finding that he did not fear for his own well-being or safety;
xlvii.he claims that the identification of inconsistencies in the witness statements are exaggerated;
xlviii.he disputes the finding that it might be expected that the letter of attendance for medical treatment would identify possible domestic violence;
xlix.he disputes the finding that his motivations were inconsistent in relation to withholding information from the AAT;
l.he claims that findings in relation to his credibility are wrong; and
li.the IE’s statement as to the determination of whether family violence took place makes the entire report redundant.
It was therefore asserted that it would be unjust to rely upon the IE’s report.

I have considered these submissions individually and cumulatively.
[The applicant]’s submissions fall into a number of categories.
His claims about evidence and findings on the issue of claimed financial abuse are contained in paragraphs 1, 2, 5, 7, 8, 10, 20, 22, 29 and 45 of his submission. Having read the submissions and the IE’s report carefully, I consider the findings of the IE are to be preferred to the submissions. Given my findings above as to the credibility of [the applicant]’s evidence to the Tribunal, where he denies having made statements to the IE, I prefer the account provided by the IE.
His claims about evidence and findings on the issue as to whether the sponsor’s behaviour caused him to reasonably fear for, or to be reasonably apprehensive about, his well-being or safety are contained in paragraphs 2, 3, 9, 10, 12, 14, 32, 37, 39, 40 and 46 of the submissions. Having read the submissions and the IE’s report carefully, I am of the view that the IE’s findings in this respect are reasonable and available to him on the evidence. Where [the applicant] disputes having provided information to the IE, I prefer the account provided by the IE.
In paragraphs 4, 15, and 31 of the submissions, he claims the IE has mischaracterised his description of the incident with the knife given in the course of the assessment. Where [the applicant]’s recall of the assessment is at variance with the IE’s report, I prefer the account in the IE report.
At paragraph 6 of the submissions, he claims there is an incorrect finding as to the addressing of correspondence by the tax office. The documents available to the Tribunal, namely the ATO notice of assessment for the year ended 30 June 2016, issued on 10 August 2016, was addressed to [the applicant] at a unit in [named] Street, being an address where he told the Tribunal he resided without the sponsor. Accordingly, I consider the submission unfounded.
At paragraph 7, 11 and 23 of the submissions, he refers to facts and circumstances raised at the assessment that were not part of the Tribunal hearing. Where his recall of the assessment process differs from that of the IE, the Tribunal prefers the report of the IE.
At paragraphs 26, 32, 34, 35, 42 and 49 of the submissions, there are various objections to the IE’s references to the timing and content at various times of [the applicant]’s claims of domestic or family violence. It is the Tribunal’s view that these matters are relevant and it is a matter for the IE as to be used which those matters are put.
At paragraphs 21, 43, 44 and 50 of the submissions, [the applicant] objects to various findings as to the inconsistency of his evidence. It is the Tribunal’s view that these conclusions were available to the IE in view of the material under consideration.
At paragraphs 13, 15, 16, 27, 28, 36, and 41 of the submissions, there are objections or disputes as to the IE’s assessment of the commencement, timing and duration of the claimed domestic or family violence. Where [the applicant]’s recall of the assessment is at variance with the IE’s report, I prefer the account provided by the IE.
At paragraphs 18 and 45 of the submissions, there are objections to the IE’s assessment of some of the evidence provided by the witnesses. The submissions, in my view, are argumentative and do not affect the validity of the IE’s assessment. The submission at paragraph 45 that one of the witnesses subsequently corrected her evidence is incorrect: both witnesses corrected their evidence.
At paragraphs 19, 33 and 48 of the submissions, he objects to the IE noting that the letter of attendance for medical treatment does not indicate concerns regarding the origin of the injuries as being domestic violence related. It is considered that this is a finding within the expertise of the IE.
At paragraphs 17, 24, 25 and 44 of the submissions, he objects to the IE’s noting that elements of the claimed domestic or family violence are poorly corroborated. It is the Tribunal’s view that this is an observation within the IE’s competence.
At paragraph 30 of the submissions, he disputes the IE’s reference to [the applicant] being given a shareholding in the business. This submission is accepted, but the Tribunal does not consider that it affects any of the IE’s conclusions.
At paragraph 38 of the submission it is claimed that the IE’s statement about [the applicant]’s cohabitation is incorrect. This submission seems to be based on a misunderstanding of the IE’s statement: the cohabitation and the hope for reconciliation are two separate elements of the statement.
At paragraph 51 of the submission there is an objection to the IE’s statement as to the question of whether family violence took place during the relationship. This does not, as claimed, make the report redundant. Rather it is a standard statement in an assessment of this nature that where family violence has been found to exist, it is a matter for the Tribunal to determine whether the relevant relationship existed at the relevant times. That question is not relevant to this application.
I have noted the report of [Dr H], provided on 3 June 2021. I note that she concludes that [the applicant] was subjected to domestic or family violence by [Mr A]. This is not an opinion of an independent expert authorised by the Regulations. It also raises further questions as to the consistency of [the applicant]’s evidence which the Tribunal, however, finds it unnecessary to pursue.
The Tribunal is satisfied that the opinion of [Ms I] is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.
Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.
Given the above conclusion that the claim of family 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
The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
James Lambie
Senior 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.

[2021] AATA 4487

22 October 2021

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Immigration

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Procedural Fairness

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