2005017 (Migration)

[2021] AATA 244

2005017 (Migration) [2021] AATA 244 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2005017

MEMBER:Rosa Gagliardi

DATE:29 January 2021

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·

cl.820.211(2)(d)(ii) of Schedule 2 to the

Regulations; and

·cl.820.221(3) of Schedule 2 to the
  Regulations.

Statement made on 29 January 2021 at 4:02pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Circuit Court remittal – spouse or de facto partner – application made more 28 days after last substantive visa held – relationship now ceased – family violence evidenced by court order – visa history – compelling reasons for not applying criteria – high profile in Australia as critic of government in home country – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23; Schedule 2, cls 820.211(2)(d)(ii), 820.221(3); Schedule 3, Criterion 3001
Domestic Violence and Protection Orders Act 2008 (ACT), s 46

CASES
Babicci v MIMIA (2005) 141 FCR 285
Minister for Immigration and Citizenship v SZRKT [2013] FCA317
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32.2012

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 Immigration on 30 November 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 April 2014 on the basis of his relationship with his sponsor, [Ms A]. At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. 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.820.211 and 820.221 which require that at the time of application and decision, 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.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.

4. The delegate initially refused to grant the visa on the basis that the applicant did not meet cl.820.211(2)(d)(ii) because it was considered that there were no compelling reasons to enable the applicant to lodge his visa application onshore by way of a waiver of the Schedule 3 criteria.

5. The Tribunal affirmed the Department’s refusal.  On 1 February 2018 the Federal Circuit Court remitted the matter by consent in Chambers on the basis that consideration had not been given to the applicant’s claims that he had difficulties obtaining a passport to return to his home country, Zimbabwe (Minister for Immigration and Citizenship v SZRKT [2013] FCA317). 

6. Accordingly, the Tribunal differently constituted, is reviewing the decision in relation to the Schedule 3 criteria (cl.820.211(2)(d)(ii)). 

7. At the time of decision the applicant has also raised family violence allegedly perpetrated by the applicant’s sponsor during their relationship and the Tribunal therefore also makes findings in relation to these allegations against the relevant criteria.

8. The applicant appeared before the Tribunal on 11 January 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SCHEDULE 3 CRITERIA (cl.820.211(2)(d))

   Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

10. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).

    It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria.

    Criterion 3001

11. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.

12. Departmental records show that the applicant last held a substantive visa on 30 September 2013.  This application was lodged on 8 April 2014 while the applicant was still in his relationship with his former partner.  As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

13. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.

14. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.2012.

    Did the applicant manipulate his circumstances to give rise to compelling reasons?

15. The applicant’s migration history is as follows:

    ·He initially came to Australia as the holder of a Student (subclass 572) visa.

    ·

    He was later granted a subsequent Student (subclass 573) visa due to cease on

    
    

    30 September 2013.

    ·The applicant then applied for a Protection visa (subclass 866) on 13 September 2012.

    ·The applicant applied for review of the refusal, but the decision was affirmed.

    ·

    The applicant appealed the decision to the Federal Circuit Court of Australia and the Court similarly affirmed the decision to refuse the applicant a Protection visa on

    
    

    14 March 2014.

    ·On 8 April 2014 the applicant lodged this Partner visa subject of this review. 

16. It is difficult to find that the applicant deliberately manipulated his circumstances to give rise to compelling reasons.  From the evidence tendered at hearing it would appear that the applicant was simply pursuing his options for review and litigation.  Nonetheless, the applicant has demonstrated a determination to remain in Australia and the Tribunal places some adverse weight on this matter.

    Compelling reasons

17. The Tribunal is not purporting to review the applicant’s RRT claims.  In any event at the time of decision the applicant has expanded his reasons for not wishing to return to Zimbabwe.  Credible evidence has been submitted to show that the applicant [while] in Australia runs a [named website].  Corroborating and persuasive evidence has been submitted to show that the applicant has been associated with the [website] since 2012 in various capacities drawing attention to Zimbabwe’s human rights abuses.

18. The applicant claimed at hearing that he could not return to Zimbabwe because he had a high profile in Australia as someone who had directly and obliquely criticised the regime.  Further, he was thwarted by the Zimbabwean Embassy from obtaining a passport to return, and that this was evidence that the authorities of his country were targeting him for the views he had expressed and promulgated. 

19. The Tribunal accepts that the applicant holds a profile with the Zimbabwean authorities and that there is a danger to his safety were he to return there.  The country information bears this out:

    Despite President Emerson Mnangagwa repeatedly voicing his commitments to human rights reforms, Zimbabwe remained highly intolerant of basic rights, peaceful dissent, and free expression in 2019. During nationwide protests in mid-January, following the president’s sudden announcement of a fuel price increase, security forces responded with lethal force, killing at least 17 people, raping at least 17 women, shooting and injuring 81 people, and arresting over 1,000 suspected protesters during door to door raids.  In the months that followed, several civil society activists, political opposition leaders, and other critics of the government were arbitrarily arrested, abducted, beaten, or tortured. Little to no efforts were made to bring those responsible for the abuses to justice.

    On September 6, Zimbabwe’s long-time former ruler, Robert Mugabe, died in Singapore. Despite his 37 years in power having been marked by widespread human rights violations and the ruining of the country’s economy, Mugabe was never held to account for his corrupt and abusive rule.[1]

    [1] Human Rights Watch, World Report, Zimbabwe, Events of 2019, World Report 2020: Zimbabwe | Human Rights Watch (hrw.org), accessed on 29 January 2021.

20. Further, an article by IMS, titled “Statement on escalating media and human rights violations in Zimbabwe”, dated August 2020, states, among other things:

    We, the undersigned media organisations, note with concern the escalating media and human rights violations in Zimbabwe. This follows the arrest and detention of investigative journalist Hopewell Chin’ono, the harassment of Zimlive editor Mduduzi Mathuthu, the abduction and torture of Mathuthu´s nephew Tawanda Muchehiwa and threats to other family members of the above-named journalists. 

    According to the mid-term Status of the Media Report by the Media Institute Southern Africa Zimbabwe chapter, violations against 25 journalists were recorded during the period covering first six months of the year. The attacks on both Chin’ono and Mathuthu included violent raids on their homes, confiscation of work equipment and harassment and torture of family members, which appears intended to send a message to independent media to intimidate them from reporting truthfully and critically on the situation in Zimbabwe. 

    We express concern that it took a court injunction for the detained Chin’ono to be allowed privacy on counsel with his lawyers, access to food and Covid-19 protective equipment while in prison. His lawyers have equally faced intimidation from the police. 

    We also note the rise in inflammatory rhetoric and hate speech against organisations that are speaking out on the socio-political situation in Zimbabwe, many of whom are labelled as proponents of regime change and others attacked based on their tribe and religious beliefs. 

    The cases noted above and the polarisation in Zimbabwe makes it difficult for the media to operate freely, and for civic organisations and citizens to freely express themselves on the situation in Zimbabwe. This prevailing situation comes against the background of high expectations that Zimbabwe’s situation would improve for the better after years of political repression and stunted national growth. 

    Zimbabwe is ranked at 126 out of 180 countries in the Reporters Without Borders 2020 World Press Freedom Index. Given this data, it stands to reason that there is need for Zimbabwe to significantly improve on her press freedom level. Though we take note of the positive steps by the Ministry of Information and Broadcasting Services to reform media laws, the process is now being undermined by the continued human rights violations.[2]

    [2] Statement on escalating media and human rights violations in Zimbabwe | International Media Support, accessed on 29 January 2021.

21. The situation as at the present time continues to give rise to alarm:

    Prominent Zimbabwean journalist Hopewell Chin'ono appeared in court Saturday after police arrested him for "peddling falsehoods." Media monitor groups fear Chin'ono's arrest — his third in six months — may be part of efforts by President Emmerson Mnangagwa’s government to stifle freedom of expression on social media.

    Chin'ono arrived Saturday at the Harare Magistrate’s Court in full personal protective equipment (PPE), complaining about his continued “persecution.”

    “Because we tell them the truth, we comment about corruption, they look for frivolous charges to throw at me,” he said. “But as a journalist I am covered by the law.”

    He sat for close to four hours as prosecutors looked for PPE to wear before proceeding with his case. Chin'ono said he has been in contact with two people who have since tested positive for coronavirus…
    …….
    Tabani Moyo of Media Institute of Southern Africa in Zimbabwe said this third arrest of Chin'ono is intended to intimidate citizens and journalists in Zimbabwe.

    “This immediate case points to a clear case of trying to effect a chilling effect on the media,” Moyo said. “How do you come to a conclusion that Hopewell has violated any law of the country for providing an opinion on a video clip that has thousands of people communicating on it? Why, why arriving at Hopewell, a journalist for that matter? So, it is an assault on the media. Secondly, it is meant to send chilling effect not only to the media, but to the users of the online spaces. This is a dangerous trend we are seeing.” [3]

    [3]

22. The applicant has submitted other compelling evidence of the restrictive approach the government of Zimbabwe is taking to the expression of any adverse political commentary, and the Tribunal is satisfied that the applicant’s life would be in jeopardy were he to return to Zimbabwe to lodge his Partner visa application.

23. Having considered the applicant’s circumstances at the time of decision as required by Waensila, the Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

24. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

25. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

    Family violence claims

26. In the present case, the applicant claims the relationship with [Ms A], the visa sponsor, has ceased and he has been the victim of family violence.   The Tribunal notes that relevant family violence has to have occurred during the relationship and not after it has ceased.  As at 3 March 2015 the Department had information that the relationship between the parties had ceased as the applicant had made an application for an order for protection against the sponsor on 13 February 2015. 

27. It is also a requirement that the relationship have been genuine and continuing at some point.  To entertain that family violence could have occurred during a relationship entered into for the sole purpose of obtaining a migration outcome, leading to the grant of a visa to someone who had misused the system, is not consistent with the requirements of a Partner visa.  The parties signed a Certificate of Civil Partnership on 20 November 2013.  The Tribunal found the applicant at hearing credible as he gave straight forward answers and the Tribunal accepts his claims that he did not enter the relationship with his sponsor for the sole purpose of gaining a migration outcome. 

28. On the basis of the evidence the Tribunal is satisfied the applicant and the sponsor were in a partner relationship before it broke down 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.

29. 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).

30. In the present case the applicant is seeking to establish family violence on the basis of evidence tested before a Court. Acceptable forms of court tested evidence as set out in r.1.23, are: a court injunction under the Family Law Act 1975; an Australian Court order for the protection of the alleged victim; or a conviction or finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim. Where such evidence is provided, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence: r.1.23(1).

31. On the applicant’s claims, the only relevant form of evidence is a Court order.

32. At hearing the applicant was able to provide in great detail the instances of family violence, both physical and emotional, allegedly perpetrated on him by his former sponsor.  Photographic material of the applicant’s injuries was also submitted to the Tribunal.  In addition, the Tribunal has sighted a report by the Australian Federal Police, dated

    
    

    [in] November 2014, indicating that the applicant was concerned about a text message sent by the sponsor to the applicant’s sister on 29 November 2014, discussing the possibility of killing the applicant.  Another police report dated [in] January 2015, has also been sighted by the Tribunal although it is apparent from the notes that the applicant was reluctant to have the text message raised with the applicant because he was afraid “it will deteriorate their relationship further”.  From the evidence at hearing it would appear that the applicant attempted to try to make the relationship work and was attending counselling to deal with the family violence he was experiencing in the relationship. 

33. It was only when the applicant realised that the marriage was untenable that he sought an order for protection on 13 February 2015, under s.46 of the Domestic Violence and Protection Orders Act 2008, in the ACT Magistrates Court, in respect of his former sponsor. The Order was granted on 28 April 2015. The Tribunal notes that the Order was by consent and that the applicant and that the respondent (the sponsor) was present when the order was made.

34. The Tribunal is satisfied that a court order was made against the sponsor for the protection of the applicant in relation to violence that occurred whilst the parties were in the relationship, after the sponsor had an opportunity to be heard or otherwise make submissions to the Court.

35. Therefore, family violence is taken to have occurred under r.1.23 of the Regulations.

1. 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.820.221(3).  Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. 

   DECISION

2. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

   ·cl.820.221(3) of Schedule 2 to the Regulations.

   Rosa Gagliardi
   Member

   
   

   ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   1.21 Interpretation

   …

   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.

   …

   violence includes a threat of violence.

   …

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

   (1)For the purposes of these Regulations:

   (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.

   
   

Columbus Mavhunga, ‘Zimbabwe arrest journalist for third time in 6 months’, 9 January 2021,
, accessed on 29 January 2021.

Zimbabwe Police Arrest Journalist for Third Time in 6 Months | Voice of America - English (voanews.com)