2008395 (Migration)

[2021] AATA 3521

2008395 (Migration) [2021] AATA 3521 (1 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008395

MEMBER:Margie Bourke

DATE:1 July 2021

PLACE OF DECISION:  Melbourne

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 01 July 2021 at 5:55pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – applicant has suffered family violence committed by the sponsor – relationship with sponsor has ceased –statutory declaration from the applicant meets the requirements of r.1.25 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359AA
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 1.25; Schedule 2, cls 100.211, 100.221

CASES

El Jejieh v MICMSMA [2020] FCA 1103
Dang v Minister for Immigration [2016] FCCA 1426

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 31 July 2017 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 applied for the visa on 18 March 2015 on the basis of his relationship with his sponsor, [Ms A]. 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).

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.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.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because in the decision record dated 31 July 2017, the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor as defined in s.5F or s.5CB of the Act prior to the relationship ceasing, and therefore the applicant did not meet the requirements of cl.100.211(4)(b).

5. The applicant applied for review of the Department decision, and a decision of the Tribunal differently constituted dated 9 October 2019 affirmed the Department decision. By order of the Federal Circuit Court of Australia dated 14 May 2020 the matter was remitted by consent back to the Tribunal on the basis that the Tribunal decision dated 9 October 2019 which found the undertaking signed 23 May 2017 was not given before a court had failed to consider evidence that the applicant and the sponsor had attended court, and the sponsor had given an undertaking.

6. The Tribunal considered the circumstances of the applicant, the nature of the review, and its objective is to provide a mechanism for review that is fair, just, economical, informal, and quick. The Tribunal considered that the conduct of the hearing by video would allow the applicant a fair opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and enable the Tribunal to assess the credibility of the applicant. The Tribunal considered that in person hearings were limited in availability due to the ongoing pandemic, and this review did not require an in-person hearing to allow a large volume of documents to be presented by the Tribunal to the applicant. For these reasons the Tribunal considered that this matter was an appropriate review to conduct by video hearing, and the applicant was invited to attend a hearing by video. The Tribunal did not receive any objection to the hearing proceeding by way of video from the applicant or his representative.

7. The applicant appeared before the Tribunal by video with his representative on 1 July 2021 to give evidence and present arguments.

8. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing by video with the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 is satisfied that the following information contained in the Department decision record, and confirmed by the applicant and his representative in relation to the following dates, is correct. The applicant applied for the partner visa on 18 March 2015, and was granted a subclass 309 visa on 25 March 2016. The applicant arrived in Australia on [date] July 2016, and the relationship broke down within three months in mid October 2016. The sponsor notified the Department the relationship had broken down and her sponsorship was withdrawn on 25 October 2016. The applicant’s representative advised the Department this information was correct.

    Ongoing spousal relationship which has ceased

11. In support of the application for the visa the applicant provided the application form which was lodged online, the sponsor’s Australian citizenship certificate, employment and tax documents of the sponsor, the sponsor’s divorce order dated July 2014, the applicant’s translated birth certificate, the applicant’s completed bachelor of science document dated 2003, a statutory declaration from the sponsor’s cousin, a statutory declaration from the sponsor sister-in-law, statements from the sponsor, wedding photos, a completed form 80, photographs, travel documents, international call records, Gmail records, the sponsor’s phone records and identity documents. In the information provided to the Department after the relationship broke down, the applicant provided medical reports and counsellor reports which also referred to the marital relationship between the applicant and the sponsor.

12. The applicant provided the Tribunal with videos of the wedding between the applicant and the sponsor. The eight discs of material were provided to the Tribunal the day before the hearing. I accept that this evidence establishes that the wedding was a large and flamboyant function.

13. The Tribunal has also considered the judgement in the case of El Jejieh v MICMSMA [2020] FCA 1103, in which the Federal Court at paragraph 205 states “if the applicant establishes that he or she held a Subclass 309 visa at the time they entered Australia and continue to hold that visa, in a sense that demonstrates that they were the spouse of an Australian citizen. But they do not need to demonstrate that fact separately. They need only demonstrate that they held and continue to hold a Subclass 309 visa.” In this review the applicant continued to hold a Subclass 309 visa, during the relationship between the applicant and the sponsor which was relatively short lived in Australia.  The evidence to support the relationship between the applicant and sponsor in Australia was limited but not negative.  I am satisfied that the applicant resided with the sponsor as her spouse in the home rented by her from 26 July 2016 to mid October 2016. I am satisfied that the spousal relationship continued although the relationship was fraught with difficulty. I accept the evidence of the applicant that the relationship was severely troubled, and the difficulties were exacerbated by his inability to find employment.

14. I have considered that the applicant applied for an intervention order against the sponsor on 24 April 2017, and she attended court to defend the allegation. I accept that in the  application for the intervention order the applicant refers to the time to applicant and sponsor resided together, and that they had been separated for six and a half months.

15. 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.

16. 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).

17. In the present case the applicant is seeking 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?

    Joint undertaking R.1.23(8)

18. The applicant provided evidence and claimed to have made nonjudicially determined claims of family violence to meet the requirements of both r.1.23(8) and (9). I will consider the joint undertaking requirement first. R.1.23(8) requires an application for a visa is taken to include a nonjudicially 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.

19. The applicant provided the Department and the Tribunal the copy of an undertaking made at [a] Magistrates’ Court on [date] May 2017. The Tribunal finds that this undertaking does not meet the requirements of r.1.23(8) for the following reasons. Firstly it is not a joint undertaking. The document provided is an undertaking given by [Ms A] in which she undertakes that she will not commit family violence, or contact the applicant and other clauses for one year. This is not a joint undertaking.  There is no undertaking provided by the applicant  (the alleged victim in relation to the proceedings) in the document provided to the Tribunal. The only undertaking in the document provided to the Tribunal is given by the sponsor.

20. Secondly the undertaking records “the respondent gives this undertaking without admitting what is said in the application”. The Tribunal interprets that an 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, would require an undertaking that contains a recognition that the allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim. This is not the case here.

21. Thirdly, the Tribunal finds that the understanding of the sponsor was that the application for the intervention order (i.e. the allegation before the court) had been withdrawn and the allegation that the sponsor had committed family violence was no longer before the court. The information that the sponsor had provided to the Department by email, that she had attended court and that she understood the court had withdrawn the case, that she had given undertaking that she would not call him and that the applicant did not get a court order that she had committed family violence on him, was put to the applicant pursuant to s.359AA in the hearing. The applicant stated to the Tribunal that he understood the particulars of the information, the relevance of the information and the consequences if the Tribunal relied on the information. The Tribunal allowed the applicant time to consult with his representative before providing any comments or responses. The applicant elected to comment or respond in the hearing. The applicant was discussing with the Tribunal what happened in court, when his representative interrupted and stated that the applicant relied on the undertaking and would not be providing any further responses. The Tribunal has continued to assess the undertaking document as evidence of a claim for a nonjudicially determined claim of family violence. The Tribunal finds that the undertaking was given at court on the basis that the application for the intervention order was withdrawn, that no finding that the sponsor had committed family violence was made by the court, and that the sponsor gave an undertaking not to have any contact with the applicant for 12 months.  This is not an undertaking in relation to family violence, and is an undertaking made after the intervention order application was withdrawn.

22. For the above reasons the Tribunal finds that the undertaking provided by the applicant was not a joint undertaking, does not meet the requirements of the regulations as being in relation to proceedings before the court that the alleged perpetrator has committed an act of violence against the alleged victim, and was not a document that the sponsor understood was a joint undertaking in relation to the intervention order application. The Tribunal finds that the undertaking provided by the applicant does not meet the requirements of r.1.23(8) and does not satisfy the criterion for a nonjudicially determined claim of family violence.

    Statutory declarations R.1.23(9)

23. 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.

24. 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).

25. 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).

26. The applicant made a statutory declaration dated 12 December 2016 and referred to that statutory declaration in the statutory declaration for family violence claim form 1410 also dated 12 December 2016. In the first mentioned statutory declaration the applicant sets out the allegations of family violence and names the person alleged to have committed the relevant family violence as his wife the sponsor, includes statements that the sponsor would yell abuse at him, hit him with objects, called him insulting names, and behaved dangerously (on one occasion she chased him with a knife and on another put a pillow on his head). The applicant stated he feared for his physical and mental well-being. I am satisfied that the statutory declaration from the applicant meets the requirements of r.1.25(2).

27. The applicant provided a series of reports from his treating doctor. The applicant’s treating doctor provided reports that he treated the applicant over a period of time, diagnosed the applicant with depression and anxiety, treated him with medication and referred him for counselling and life management treatment. I am satisfied that the medical reports from the applicant’s medical practitioner who was performing the duties of the medical practitioner, identifies the alleged victim and details treatment for mental health for the applicant which is consistent with the claimed family violence.

28. The applicant provided a detailed report from a mental health social worker dated 1 April 2017. The social worker provided a statutory declaration to the Tribunal dated 17 July 2020 referring to his report dated 1 April 2017 and his updated letter dated 11 September 2019. The social worker identified that he was a member of the Australian Association of Social Workers and had provided counselling and assistance to the applicant from February 2017, and his report dated 11 September 2019 confirmed he continued to see the applicant every six weeks. The social worker recorded the self reporting of the relationship issues between the applicant and the sponsor from the applicant, but concluded he found the applicant genuine with his account of the abusive marriage and termination of the relationship. In his statutory declaration the social worker stated that he believes the applicant suffered family violence perpetrated by his ex-wife. I am satisfied that the social worker has provided his opinion that the alleged victim was subject to family violence and has identified the alleged perpetrator. In the social worker’s reports of 1 April 2017 I am satisfied that the social worker sets out his reasons for his opinion that the applicant experienced family violence in the detail he provides of the relationship between the applicant and the sponsor (as self-reported by the applicant) and the examination, diagnosis and treatment of the applicant’s mental health issues.

29. I am satisfied that the applicant has provided a statutory declaration with attached reports from a social worker, and medical reports from a treating medical practitioner, which meet the requirements of Schedule 1 of the instrument IMMI 12/116 for the purposes of satisfying the requirements of r.1.24(b).

30. 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?

31. I have considered the evidence provided by the applicant in the application for the intervention order, in the information provided to his doctor and his mental health social worker, in his statutory declaration, and in his written and oral evidence to the Tribunal. I am satisfied that the relationship between the applicant and the sponsor after the applicant arrived in Australia was difficult and volatile. Having considered all of the evidence before it, in particular the written reports from the applicant’s treating doctor and his treating mental health social worker, the Tribunal is satisfied, for the purposes of r.1.23, that the applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship. As such, the applicant is taken to have suffered family violence in the relevant sense: r.1.22.

32. 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

33. 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.

    Margie Bourke
    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.