2101248 (Migration)

[2021] AATA 3415

2101248 (Migration) [2021] AATA 3415 (30 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2101248

MEMBER:P. Maishman

DATE:30 July 2021

PLACE OF DECISION:  Perth

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 30 July 2021 at 12:20pm

CATCHWORDS
MIGRATION –Partner (Migrant) (Class BC) visa – Subclass 100 – Federal Circuit Court remittal – applicant has suffered family violence committed by the sponsor – relationship with sponsor has ceased –statutory declaration of Psychologist – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.21, 1.23, 1.24, 1.25, Schedule 2, cl 100.221

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 March 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 applied for the visa on 23 June 2016 on the basis of her relationship with her sponsor, [Mr 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 the delegate was not satisfied the applicant was the spouse or de facto partner of her sponsor prior to her 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 1 November 2019 affirmed the Department decision. By order of the Federal Circuit Court of Australia dated 1 December 2020 the matter was remitted back to the Tribunal quashing its decision dated 1 November 2019 requiring it to determine the application according to law.

6. The applicant appeared before the Tribunal on 30 July 2021 to give evidence and present arguments.

7. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal had before it a copy of the Department’s file containing the visa application and sponsor form, documentary evidence supporting the existence of the spousal relationship between the applicant and her sponsor and the notification of the grant of a Partner (Provisional) (subclass 309) visa dated 7 February 2017. The applicant arrived in Australia on [date] February 2017 as the holder of the subclass 309 visa. On 18 September 2017 the applicant told the Department in writing she was no longer with her husband and they had separated due to family violence. On 26 October 2017 the sponsor told the Department he was separated from the applicant.

10. The Tribunal had before it a copy of the previous [Tribunal file]. The applicant gave the previous Tribunal a copy of the delegates decision record. The Tribunal received a submission from the applicant’s representative dated 23 July 2021, a statement from the applicant’s friend [name deleted] dated 8 July 2021, a letter from [a named person] of [Association 1] dated 20 July 2021 and an updated statutory declaration from the applicant dated 23 July 2021.    

11. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Relevantly to this matter, cl.100.221(4) provides an exception to the requirement for an applicant who first arrives in Australia as the holder of a Subclass 309 (Partner (Provisional)), if the spouse relationship has ceased and the applicant has suffered family violence committed by the sponsor: cl.100.221(4)(b), (c)(i).  

12. In the present case, the applicant claims her relationship with [Mr A], the visa sponsor, has ceased and she has been the victim of family violence.

13. The Department’s file contains the notification to the applicant of the grant of a subclass 309 visa. Departmental records show the applicant entered Australia as the holder of that visa on [date] February 2017. The applicant and sponsor informed the Department separately the relationship between them ceased after July 2017.  

14. On the basis of the evidence, the Tribunal is satisfied the applicant first entered Australia as the holder of a subclass 309 visa and continues to be the holder of that visa. The Tribunal is satisfied the applicant would continue to meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and her sponsoring partner has ceased.    

15. 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?

18. 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.

19. 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).

    Statutory Declaration under r.1.25

20. 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).

21. The applicant provided the Tribunal a statutory declaration signed, dated and witnessed on 23 July 2021. The applicant declares she considers her separation to have occurred on [date] July 2017 when he abandoned her. The applicant alleges her marriage broke down because of family violence towards her perpetrated by her husband.

22. The Tribunal is satisfied the applicant has made a statutory declaration that meets the requirements of r.1.25(2).

    Evidence meeting the requirements of IMMI 12/116       

    Statutory declaration of [Ms B] – Clinical Psychologist 8 March 2018

23. [Ms B] is a clinical psychologist and reports she first met the applicant 9 December 2017. [Ms B] an extensive history of the applicant’s relationship and behaviours of the sponsor endured by the applicant during their relationship. [Ms B] declares that she is of the opinion that family violence most likely existed in the relationship and names the sponsor as the perpetrator. [Ms B] declares the applicant continues to engage in psychological therapy.

24. [Ms B] states her opinion the applicant is the alleged victim of family violence perpetrated the sponsor and details the reasons for her opinion.

25. The Tribunal is satisfied the statutory declaration of [Ms B] dated 8 March 2018 is acceptable evidence as described in IMMI 12/116.

    Letters from [Association 1]      

26. The Tribunal had letters before it from [Association 1] dated 29 March 2018, 18 October 2019, and 20 July 2021. [Ms C], a dual diagnosis worker/recovery support worker with the [Association 1], describes in her letters dated 29 March 2018 and 18 October 2019 the various emotional and mental health and trauma support, received by the applicant and the family and trauma counselling provided.

27. Ms [C] reports state the applicant has made a claim of family violence, states the applicant was subject to family violence, identifies the applicant’s husband as the alleged perpetrator of the family violence and outlines the disclosures made to various [Association 1] workers as evidence used to form the opinion.

28. The Tribunal is satisfied the reports from [Association 1] dated 29 March 2018 and 18 October 2019 are acceptable evidence as described in IMMI 12/116.

29. 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?

30. The applicant confirmed she prepared the statutory declaration she signed on 23 July 2021. The applicant gave oral evidence everything recorded in statutory declaration was true and correct. The Tribunal noted the applicant’s claims of family violence in her statutory declaration were significantly more comprehensive and detailed than previously provided in her statutory declaration dated 18 December 2017. The applicant explained the details of the sexual assaults inflicted on her by her ex-husband were difficult to discuss. They are matters she feels were between her and her then husband. She did not talk to her friends about her husband’s behaviour as that would be shameful. Similarly reporting her husband to the police was not an option because she did not want her marriage to fail and was hopeful the issues could be resolved.

31. The applicant’s oral evidence to the Tribunal was genuine and unrehearsed. The Tribunal is  satisfied the applicant is a credible witness and accepts her oral evidence and the claims made in her statutory declaration dated 23 July 2021 on that basis.

32. The Tribunal has considered the applicant’s oral evidence, the claims made in her statutory declaration dated 23 July 2021, the reports from [Association 1] and the statutory declaration of [Ms B]. The Tribunal finds the actual and threatened conduct towards the applicant by the sponsor occurred during her relationship and caused her to reasonably fear for, or to be reasonably apprehensive about, her physical and mental well-being or safety.

33. Having considered all of the evidence before it, 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.

34. 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

35. 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.

    P. Maishman
    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.