2007071 (Migration)

[2021] AATA 5466

2007071 (Migration) [2021] AATA 5466 (23 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007071

MEMBER:Kira Raif

DATE:23 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:

·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations

Statement made on 23 December 2021 at 12:54pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 – relationship breakdown –applicant has suffered family violence committed by the sponsor – independent expert’s opinion – violence occurred during the relationship – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.21, 1.22, 1.23,1.24, 1.25, 1.26, Schedule 2, cl100.221

CASES

El Jejieh v MICMSMA [2020] FCA 1103

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 7 September 2018 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Fiji, born in [year]. The applicant applied for the visa on 13 May 2015 on the basis of his relationship with his sponsor. The primary decision record indicates that the applicant was granted the Provisional Partner visa in December 2015. However, in August 2018 the sponsor informed the Department that the relationship broke down. As a result, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.100.221. The applicant seeks review of the delegate’s decision.

3. In January 2019 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of the Tribunal’s decision and the matter was remitted for reconsideration.

4. The Tribunal wrote to the applicant on 4 March 2021 inviting him to attend a hearing on 24 March 2021. On 8 March 2021 the applicant’s newly appointed representative sought a postponement of the hearing stating that the applicant now believes he had been subjected to family violence and that he did not have sufficient time to present evidence of the family violence. The Tribunal does not accept that to be the case. The Tribunal is mindful that the primary decision was made in September 2018 and in the Tribunal’s view, a period of two and a half years would have provided the applicant with ample time to obtain the required evidence. The Tribunal also notes that the applicant had previously sought review with this Tribunal and would have also had the opportunity to present that evidence. Nevertheless, and despite the Tribunal’s reservations, the Tribunal agreed to postpone the hearing at the applicant’s request.

5. The applicant appeared before the Tribunal on 12 April 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

6. At that time, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

7. Relevantly to this matter the primary criteria include cl.100.221 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.100.221(4)(b), (c)(i). The applicant claims this occurred in this case.

8. 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. 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).

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

9. In the present case the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence.

10. 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.

11. 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.

12. 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).

13. On 7 April 2021 the applicant provided to the Tribunal his own statutory declaration, a declaration from a psychologist and a report from a medical practitioner. 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?

14. The applicant provided a detailed statutory declaration to the Tribunal in which he outlined the nature of his relationship and also the incidents which he claims amounted to family violence. In oral evidence the applicant also stated that there were two incidents in 2016 when his partner involved him in rough sex and threatened that if he did not listen to her, she could report him to the police. The applicant claims he became fearful. The applicant claims the sponsor also threatened to send him back to his home country and controlled him.  

15. The Tribunal is concerned that the formal evidence relating to family violence had only been made recently, after the applicant appointed a new migration agent, after the sponsorship was withdrawn and after he was unsuccessful in obtaining the visa on the basis of his relationship. The Tribunal is concerned that such claims were only made to enable the applicant to meet the statutory criteria for visa grant, as the applicant felt, or was advised, that  he had no other options. The applicant explained to the Tribunal that he did not know about the family violence option and that he could make the claim but in the Tribunal’s view, the applicant would have either received that information from the Department upon withdrawal of sponsorship (as is the Department’s usual practice) or he could have easily accessed that information from any migration agent, the Department or by doing very basic search. Indeed, the applicant was represented in his first review before this Tribunal and the Tribunal does not accept that the applicant was unaware, or was not advised that the claim of family violence could be made. The applicant also suggests that he was hoping to get interviewed and that is why he did not fully disclose the information but the Tribunal does not accept that the applicant would withhold key information in the hope or expectation of getting an interview. The Tribunal does not accept that the applicant was unaware that he could make a claim of family violence prior to the time when such a claim was in fact made and the Tribunal has formed the view that the applicant was not truthful in his explanations.

16. 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 1 September 2021 the Tribunal received the opinion of the independent expert that the applicant had not suffered relevant family violence. This information was provided to the applicant pursuant to s. 359A of the Act. In response, the applicant provided a submission on 30 September 2021 in which he raised a number of concerns about the validity of the IE opinion, claiming, essentially, that he had been denied procedural fairness. The applicant was given an opportunity to attend another meeting with the IE and on 22 December 2021 the Tribunal received another opinion of the IE stating that the applicant did suffer relevant family violence.

17. Despite the Tribunal’s reservations and concerns about the applicant’s credibility, the Tribunal is satisfied that the opinion 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. As such, r.1.23 requires the Tribunal to take as correct an independent expert’s opinion, properly made.

18. Where the independent expert’s opinion is that a person has suffered relevant family violence, at least part of the violence that led to that opinion must have occurred while the married or de facto relationship existed. The Tribunal is mindful that in this case, the applicant had been granted a temporary visa and that a decision-maker has found in the past that the applicant and the sponsor had a genuine spousal relationship. Having regard to the reasoning in El Jejieh v MICMSMA [2020] FCA 1103, the Tribunal will not revisit that finding.

19. The applicant claims his relationship with the sponsor ended around mid-2018. The applicant claims the various forms of violence occurred during the relationship, including some incidents in 2016 and several incidents before the relationship breakdown in August 2018. The existence of these incidents appears to have been accepted by the IE. Having regard to the information in the IE report, the Tribunal accepts, on balance, that the family violence occurred during the relationship. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for r.1.22.

    Conclusion

20. 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.100.221(4)(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 (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:

    ·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member