2111853 (Migration)

2111853 (Migration) [2022] AATA 3253 (5 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Katie Wrigley (MARN: 1383306)
CASE NUMBER: 2111853

MEMBER:Deputy President Justin Owen
DATE:5 August 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Statement made on 05 August 2022 at 10:41am

CATCHWORDS
MIGRATION – Partner (Resident) (Class BS) visa – Subclass 801 (Partner) – Federal Circuit Court remittal – relationship ceased – family violence during the relationship – non-judicially determined claim – family violence claim not established – types of evidence meeting specified requirements – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Health Insurance Act 1973, s 3
Migration Act 1958, s 5, 65
Migration Regulations 1994, Schedule 2, cl 801.221; rr 1.15, 1.21 - 1.25
Statutory Declarations Act 1959

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 February 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 26 November 2013 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The applicant was granted a Partner (Temporary) (Class UK) (Subclass 820) visa on 1 July 2015. The delegate, however, on 2 February 2017 refused to grant the Partner (Residence) (Class BS) (Subclass 801) visa on the basis that the applicant did not satisfy cl 801.221 because the delegate was not satisfied the applicant was the spouse or de facto partner of the sponsor at the time of decision.
The applicant appealed to the Tribunal for review of the delegate’s decision. At the (differently constituted) Tribunal hearing the applicant attested to the relationship whilst also making claims of non-judicially determined family violence during the Tribunal’s proceedings.
On 20 November 2018 the Tribunal affirmed the delegate’s decision not to grant a Subclass 801 visa on the basis it did not consider the applicant was in a genuine spousal or de facto relationship with her sponsor at the time of decision.
The applicant appealed to the Federal Circuit Court for judicial review of the Tribunal’s decision. [In] September 2021 the Federal Circuit Court made orders quashing the Tribunal’s decision of 20 November 2018 and remitting the matter to the Tribunal for reconsideration according to law.
The matter was remitted by consent, with the Minister conceding the Tribunal fell into jurisdictional error when it misapprehended that it was precluded from taking into account the applicant's domestic violence claims because her relationship with the sponsor did not meet cl 801.221(2)(c) of the Regulations, and it misconstrued the applicant's allegations of domestic violence as having not occurred within the currency of any relationship. It was conceded the Tribunal was not precluded from considering the applicant's domestic violence claims (for the purposes of considering whether the applicant had suffered family violence under reg 1.23 of the Regulations). Further, contrary to the Tribunal’s findings, it was conceded the applicant had in fact alleged that she had suffered domestic violence during the currency of her relationship with the sponsor.
The applicant appeared before the Tribunal on 25 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [four named witnesses]. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was invited to make post-hearing submissions, which were received by the Tribunal on 6 June 2022.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Was there a genuine partner relationship?
In this case the applicant claims her relationship with the sponsor ended in late 2018 due to family violence. The issues in the present case are whether: the applicant was in a relevant partner relationship (i.e. spouse or de facto, as defined in the legislation) with the sponsor at the time of the claimed family violence; the relevant spouse or de facto partner relationship has ceased; and the relevant person (the applicant) has suffered family violence committed by the sponsor.
At the hearing of 25 May 2022, the Tribunal discussed the applicant’s claimed former partner relationship with the sponsor in significant detail. The applicant claimed her relationship with the sponsor commenced in late 2011, with the parties cohabitating on the Gold Coast from August 2012. The applicant stated that she and the sponsor also lived from time to time in an apartment she leased in Sydney. The applicant claimed her partner relationship finally ended in October 2018. This statement was supported by her statutory declaration supplied to the Tribunal.
The Tribunal noted the applicant had previously claimed to the differently constituted Tribunal in April 2018 that her relationship with the sponsor had ended in November 2016. The Tribunal noted that the applicant had also provided correspondence from [Hospital 1] from September 2017 that referred to her ex-partner and stated that the applicant’s relationship with the sponsor had ended. The Tribunal noted the contradictions and noted they may impact the credibility of her claims to have been in a partner relationship with her sponsor.
The applicant explained that towards the end of 2016 she had sought treatment for her psychological state. She suggested her testimony at the differently constituted Tribunal’s hearing in April 2018 was impacted by her psychological state. She stated that her relationship with the sponsor had been up and down, but at that time she was taking a range of medication and her mental state was not good. The Tribunal has considered all the evidence before it, including the range of evidence before it in relation to the applicant’s mental health at the time, and is satisfied that the applicant has faced considerable psychological hardship and was receiving treatment including at the time of the previously constituted Tribunal’s hearing in April 2018. The Tribunal has considered the applicant’s previous testimony and evidence from April 2018 in that context.
The Tribunal discussed with the applicant that the family violence criteria required that the relationship between the applicant and her sponsor had ceased. The Tribunal explained that a relevant partner relationship must have existed between herself and the sponsor before it could be determined such a relationship had “ceased”. The Tribunal explained that this would be determined by the Tribunal, which would consider whether the applicant had ever been in a genuine de facto partner relationship with the sponsor. The Tribunal explained that if it determined that a partner relationship never existed, the family violence exception for the grant of the visa would not arise for determination.
The Tribunal discussed the applicant’s claimed former partner relationship with the applicant. The Tribunal raised with the applicant a wide range of questions concerning certain aspects of her former claimed de facto relationship, including: the financial and social aspects of the relationship; the nature of the applicant and sponsor’s household; and the nature of their commitment to each other. The applicant provided testimony on each of these aspects of her claimed former relationship.
Through her representative the applicant also provided written submissions on 6 June 2022 in relation to the s 5CB matters that expanded further on the applicant’s oral testimony at the hearing.
The Tribunal considered the information the applicant previously provided to the delegate as part of her application, as well as evidence provided to the differently constituted Tribunal in 2018 and the evidence provided as part of the present review.
Ultimately, the Tribunal is satisfied that the applicant was in fact in a de facto partner relationship with the sponsor. The Tribunal is satisfied that the applicant was the de facto partner of the sponsor as defined in s 5CB.
The Tribunal acknowledges that there are some discrepancies as to when the relationship ceased, with the applicant stating the relationship was in decline between 2016 and finally ended conclusively in 2018. This was conceded by the applicant through her post-hearing submissions. The applicant noted her testimony at the Tribunal hearing in 2018 and the professional assistance she was receiving in relation to her psychological health during this period. The Tribunal accepts the applicant’s claims she was unwell at the time of the 2018 Tribunal hearing and notes the timeline list the applicant provided of the extensive treatment she received from various services during this time.
However, the Tribunal notes the evidence before it of the applicant’s previous relationship with her sponsor. The applicant provided further written submissions on 6 December 2021 and post-hearing in relation to the genuineness of the relationship. The Tribunal has considered the written submissions as well as the oral testimony from the hearing and is satisfied there was a genuine de facto relationship between the applicant and sponsor at some point between the time of application and 2018. The Tribunal notes the evidence of the good relationship the applicant enjoyed with the sponsor’s family prior to 2016, which the applicant has submitted is when the relationship began to sour. The Tribunal places significant weight on the emails provided from the sponsor to the applicant in 2017 concerning their relationship. The Tribunal accepts that the parties were cohabitating and sharing a household for at least some of the time the applicant has claimed she was in a de facto partner relationship with the sponsor.
The Tribunal notes the applicant’s claims as to her relationship were supported by witnesses [five named witnesses]. The Tribunal found all the witnesses to be genuine and spontaneous in their testimony and accepts their claims as to the genuineness of the applicant’s former de facto partner relationship with her sponsor.
On the basis of all the evidence before it, the Tribunal is satisfied that the applicant was in a genuine de facto partner relationship with the sponsor at some time between the time of application and the relationship ending in 2018.
FINDINGS
Exceptions
Clause 801.221(1) of the Regulations requires that the applicant must, at the time of decision, satisfy subclause (2), (2A), (3), (4), (5) (6) or (8) of cl 801.221. Relevantly in this case, cl 801.221(2) requires that the applicant remains the spouse (as defined under s 5F of the Act), or de facto partner (as defined by s 5CB of the Act) of their sponsoring partner at that time.
As the applicant’s relationship with the sponsor has ended, as evidenced by the applicant’s own evidence to the Tribunal, the applicant in this case no longer continues to be sponsored for the grant of the visa by her sponsoring partner, who in this case is an Australian citizen. Accordingly, the applicant does not continue to satisfy the criteria in cl 801.221(2).
The applicant may satisfy cl 801.221 by meeting the requirements of at least one of subclauses (3), (4) (5) and (6). These prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsor has ceased. These include: the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children.
At the hearing the Tribunal invited the applicant to make a claim and provide any information she believed may be relevant to these exceptions. The applicant stated that she believed the sponsor was in Brisbane. There is no evidence or claim the sponsor is deceased. The applicant therefore does not meet cl 801.221(5).
There is no evidence or claim before the Tribunal that the applicant and sponsor have any children together. There is no evidence or claim of any court orders or legal responsibilities in relation to children. The applicant does not meet the requirement for this exception.
In the present case the applicant claims the relationship with her sponsor has ceased and she is seeking to establish family violence on the basis of a non-judicially determined claim of family violence. On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.
Under reg 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 reg 1.21. The Tribunal notes that the violence, or part of the violence, must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14).
Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature. Under reg 1.22, a reference to a person having suffered or committed family violence is a reference to a person being taken under reg 1.23 to have suffered family violence. The applicant is required to provide the necessary evidence in order to establish a valid claim of family violence under reg 1.24(b).
At the hearing the Tribunal discussed the making of a formal claim of family violence. The Tribunal stated that for it to consider a formal claim of family violence then it must be presented and submitted in the required form. The Tribunal noted the applicant had provided in her submissions a range of documentation in support of her claim of non-judicially determined family violence. The Tribunal noted that a valid claim of non-judicially determined family violence would be made when the Tribunal was provided with a number of documents as set out in the Act and Regulations which contain specific information. The Tribunal stated at the hearing to the applicant that if she did not provide a kind of document specified, with the information specified, then a valid claim would not have been made, and the Tribunal would have no alternative but to affirm the decision under review.
The Tribunal asked the applicant what the first incidence of family violence was. The Tribunal also asked the applicant to recall the second or other incidences of family violence. The applicant responded that her relationship with the sponsor had been positive. She stated, however, that verbal abuse commenced in 2012 on an increasingly frequent basis. She explained that in 2013 she and the sponsor went to Thailand where she was abused emotionally by the sponsor, who also damaged her possessions. In 2014 the emotional, financial and social abuse worsened. Physical abuse occurred from either 2015 or 2016, when the sponsor pushed, grabbed and sat on the applicant. The applicant discussed being punched and attacked by the sponsor in 2018 and stated she was scared of the sponsor.
The applicant stated in response to the Tribunal’s questions that in January 2016 she talked to her friends about the treatment she was receiving from the sponsor and sought treatment and professional assistance.
The applicant’s claims were supported in the oral testimony of the witnesses that appeared before the Tribunal. [Witness A] stated he had met the sponsor in 2014 and discussed receiving anxious telephone calls from the applicant in the middle of the night in relation to the sponsor’s behaviour. He discussed the financial and social abuse the applicant faced from the sponsor.
[Witness B] is a former colleague of the applicant who discussed the financial abuse of the applicant by the sponsor, stating that the sponsor travelled to [Country 1] with funds provided by the applicant. She stated the applicant had been mentally abused by the sponsor.
[Witness C] stated she had met the applicant as her caseworker whilst working at [Agency 1] in 2018. She discussed her work with the applicant and the emotional issues the applicant faced as a result of her desire to get out of a toxic relationship.
[Witness D] stated he had met the sponsor through the applicant. He discussed the relationship and his concerns for the well-being of the applicant during their years together. He discussed a toxic environment and examples of financial abuse of the applicant by the sponsor.
The Tribunal found the applicant’s witnesses to be articulate and consistent in relation to the applicant’s claims of non-judicially determined family violence. The Tribunal has also taken into account their detailed written statements, which were consistent with their oral testimony.
The Tribunal acknowledges the testimony of the applicant and her witnesses. However, to make a valid claim of non-judicially determined family violence, the applicant is required to provide to the Tribunal on review a statutory declaration under reg 1.25 and the type and number of items specified in the relevant instrument. At the time of the Tribunal’s decision, the relevant instrument is IMMI 12/116.
The statutory declaration the applicant provides must be a statutory declaration under the Statutory Declarations Act 1959 (Cth). A statutory declaration dated 2 December 2021 and signed by the applicant has been provided to the Tribunal. The Tribunal is satisfied that the statutory declaration meets the requirements for the making of a valid non-judicially determined claim of family violence.
The current specified legislative instrument, IMMI12/116, specifies that a minimum of two different types of the following evidence be given:
·Medical report, hospital report, discharge summary or statutory declaration made by either a person who is: registered as a medical practitioner and is performing the duties of a medical practitioner, or registered as a nurse within the meaning of section 3 of the Health Insurance Act 1973 and is performing the duties of a registered nurse;
·Either a report, record of assault, witness statement or statutory declaration that is made by: a police officer of a State or Territory, or a police officer of the Australian Federal police;
·A witness statement that is made by someone other than the alleged victim to a police officer during the course of a police investigation;
·Report or statutory declaration made by an officer of: a child welfare authority, or a child protection authority of a State or Territory;
·Letter or assessment report made by: a women’s refuge, or a family/domestic violence crisis centre on the organisation’s letterhead;
·Statutory declaration made by: a member of the Australian Association of Social Workers, or a person who is eligible to be a member of that Association, who has provided counselling or assistance to the alleged victim while performing the duties of a social worker;
·Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist;
·Statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website;
·Statutory declaration or a letter on the school’s letterhead made by a school counsellor or school principal in their professional capacity.

For each type of evidence, the instrument specifies the information that must be included.
The applicant provided a range of different types of evidentiary documentation in support of her claim of non-judicially determined family violence both pre and post hearing. At the applicant’s hearing the Tribunal discussed the requirement that a valid claim of family violence was made when the applicant provided the Tribunal with the documents as set out in the Act and Regulations that contain specific information. The Tribunal noted at the hearing that if the applicant did not provide a kind of document specified, with the information required, then she would not have made a valid claim of non-judicially determined family violence and the Tribunal would have no alternative but to affirm the delegate’s decision. The Tribunal stated it would consider any further evidence or submissions made post-hearing.
The Tribunal has reviewed the various types of evidentiary documentation the applicant has provided in support of her claim of non-judicially determined family violence. Regrettably, given the circumstances of this case, the applicant has not provided the types of evidence as specified in the current legislative instrument.
The applicant has provided the following types of evidence in support of her claim that she asserts meets IMMI 12/116. The Tribunal, for the reasons following, does not accept the applicant has provided a minimum of two different types of evidence that meet the specific requirements of the instrument.
The applicant provided correspondence from [Doctor A] of the [Health Service 1] dated 26 April 2018. The applicant asserted that this correspondence meets the criteria for a medical report, hospital reports, discharge summary or statutory declaration made by a registered medical practitioner (or nurse, acting in that capacity). Schedule 1 of IMMI 12/116 states that the report must be made by a person who is registered as a medical practitioner and is performing the duties of a medical practitioner. The medical report, hospital report, discharge summary or statutory declaration they provide must include detail that identifies the alleged victim; and details the physical injuries or treatment for mental health that is consistent with the claimed family violence.
At the hearing the Tribunal enquired into [Doctor A’s] role in treating the applicant, noting the correspondence that referred to the applicant as being a client of the [Health Service 1] and discussing sessions the applicant was undertaking with a counsellor and psychiatrist at [Health Service 1]. The correspondence noted the applicant required a GP Mental Health plan that the [Health Service 1] would facilitate. The Tribunal enquired as to whether [Doctor A] was involved in the administration of the [Health Service 1] or was in fact the treating practitioner of the applicant.
The applicant post-hearing provided correspondence from [Doctor A] dated 1 June 2022 that [Doctor A] was part of the treatment team providing treatment to the applicant; was registered as a medical practitioner at that time, and was qualified to treat the applicant.
The Tribunal is satisfied on the basis of all the evidence before it that [Doctor A’s] medical report meets the requirements of IMMI 12/116.
The applicant has provided correspondence from [Counsellor A], [from Health Service 2] dated 14 April 2021. The applicant asserted that this correspondence meets the criteria for a letter or assessment report made by a women’s refuge or family/domestic violence crisis centre on the organisation’s letterhead. Schedule 1 of IMMI 12/116 requires that the letter or assessment report states that the alleged victim has made a claim of family violence; and states whether the alleged victim was subject to family violence; and identifies the alleged perpetrator, and details any evidence used to form the opinion.
The Tribunal has reviewed the correspondence from [Counsellor A]. The correspondence does not identify the alleged perpetrator. The correspondence does not, in the Tribunal’s opinion, state whether the applicant was in fact subject to family violence. Rather, the correspondence appears to be the reporting of the claims made by the applicant to [Counsellor A]. The Tribunal is not satisfied that the correspondence meets the requirements of IMMI 12/116.
The Tribunal furthermore is not satisfied that [Health Service 2] can be classified under the instrument as a either a women’s refuge or family/domestic violence crisis centre. The Tribunal has also turned its mind as to whether [Counsellor A’s] correspondence in the context of it potentially being correspondence from a social worker or a registered psychologist that might meet the requirements of the instrument. The Tribunal finds however that the correspondence is not in the form of a statutory declaration. Given the correspondence is not in the correct form, the Tribunal is not satisfied that the correspondence meets the requirements of IMMI 12/116.
The applicant has provided correspondence from [Social Worker A], Senior Social Worker from the [named section] at [Hospital 1] Sydney dated 15 February 2021. The applicant’s representative has asserted this correspondence meets the criteria for a letter or assessment report made by a women’s refuge or family/domestic violence crisis centre on the organisation’s letterhead. Schedule 1 of IMMI 12/116 requires that the letter or assessment report states that the alleged victim has made a claim of family violence; and states whether the alleged victim was subject to family violence; and identifies the alleged perpetrator, and details any evidence used to form the opinion.
The Tribunal has reviewed the correspondence from [Social Worker A]. The correspondence does not identify the alleged perpetrator. The correspondence does not, in the Tribunal’s opinion, state whether the applicant was in fact subject to family violence. Rather, the correspondence appears to be the reporting of the claims made by the applicant to [Social Worker A]. The Tribunal furthermore notes that the correspondence is from [Health Service 3] or specifically from [Hospital 1]. There is no evidence before the Tribunal that either [Health Service 3] or [Hospital 1] is a women’s refuge or a family/domestic violence crisis centre as required by the instrument. The Tribunal is not satisfied that the correspondence meets the requirements of IMMI 12/116.
The Tribunal has also considered [Social Worker A’s] correspondence in the context of it being correspondence from a social worker that might meet the requirements of the instrument. Whilst the Tribunal accepts that [Social Worker A] is either a member of the Australian Association of Social Workers, or a person who is eligible to be a member of the Association who has provided counselling or assistance to the alleged victim while performing the duties of a social worker as required by the instrument, the correspondence is not in the form of a statutory declaration. Given the correspondence is not in the correct form, the Tribunal is not satisfied that the correspondence meets the requirements of IMMI 12/116.
The applicant has also submitted correspondence from [Ms A], Case Manager at [Agency 2] dated 13 January 2021. The applicant asserted that this correspondence meets the criteria for a letter or assessment report made by a women’s refuge or family/domestic violence crisis centre on the organisation’s letterhead. Schedule 1 of IMMI 12/116 requires that the letter or assessment report states that the alleged victim has made a claim of family violence; and states whether the alleged victim was subject to family violence; and identifies the alleged perpetrator, and details any evidence used to form the opinion.
The Tribunal has reviewed the correspondence from [Ms A]. The correspondence does not identify the alleged perpetrator. The correspondence does not, in the Tribunal’s opinion, state whether the applicant was in fact subject to family violence. There is no evidence relied upon beyond the applicant reporting that the relationship had ended due to family violence. The correspondence rather appears to be the reporting of the claims made by the applicant to [Ms A]. The Tribunal is not satisfied that the correspondence meets the requirements of IMMI 12/116. The Tribunal is also not satisfied the correspondence could meet the requirement as a type of evidence provided by a social worker: whilst [Ms A] was undoubtedly providing assistance to the applicant, the evidence is not in the form of a statutory declaration.
The applicant has previously submitted a range of other correspondence concerning her treatment. The Tribunal has reviewed each piece of correspondence to determine whether it meets the requirements as acceptable evidence in making a valid claim of non-judicially determined family violence.
Correspondence from [Ms B], [a specified] Case Manager, dated 2 June 2022 from [Agency 2] was provided. The correspondence states the applicant engaged in and completed a four-week “Healthy Relationships Program” in 2021 at the Service. The correspondence states the applicant shared her experience of domestic violence and reflected on her experience with the broader group. The correspondence does not identify an alleged perpetrator or detail any evidence to form an opinion. The correspondence does not state whether the applicant was subject to family violence. This correspondence is not a type of evidence that meets the requirements of IMMI 12/116.
The Tribunal has reviewed correspondence from [Ms C], Case Worker at [Agency 1] dated 10 March 2020. The correspondence states that [Ms C] recently started to support the applicant. The correspondence states that in early 2019 the applicant disclosed that she was physically, emotionally and financially abused by her former partner, whilst in February 2020 the applicant disclosed to [Ms C] that she had experienced domestic violence from her former partner. The correspondence does not state whether the applicant was subject to family violence, rather it records what [Ms C] has been informed. There is, furthermore, no evidence or suggestion that [Agency 1] is a women’s refuge or a family/domestic violence crisis centre. Should [Ms C] be performing the duties as a social worker providing the applicant with counselling or assistance, the Tribunal notes the correspondence is not in the form of a statutory declaration. This correspondence is not a type of evidence that meets the requirements of IMMI 12/116.
The applicant has also submitted correspondence from [Counsellor B], Counselling Unit Manager of the [Health Service 1] ([Health Service 1]) dated 17 February 2020. The correspondence details the applicant’s utilisation of counselling services at [Health Service 1] for anxiety and depression relating to domestic violence experienced from an ex-partner. The Tribunal does not consider the correspondence meets the requirements of Schedule 1 of IMMI 12/116. The Tribunal is not satisfied that the [Health Service 1] is either a women’s refuge or a family/domestic violence crisis centre. The correspondence does not identify the alleged perpetrator. The Tribunal subsequently is not satisfied it meets the requirements for a letter or assessment report made by a women’s refuge or a family/domestic violence crisis centre on the organisation’s letterhead. The Tribunal has also considered whether, given the counselling the applicant received at [Health Service 1], whether it meets the requirements as evidence from a social worker who has provided counselling or assistance to the applicant whilst performing the duties of a social worker. The Tribunal notes that the correspondence is in the form of a letter, not a statutory declaration. Again, this evidence is not a type of evidence that meets the requirements of IMMI 12/116.
The Tribunal has reviewed correspondence from [Ms D], Business Administrator of [Agency 3] dated 19 February 2020. The correspondence states that the applicant attended counselling at the Centre on multiple occasions in 2019. The correspondence is not in the form of a statutory declaration of a member or an individual eligible to be a member of the Australian Association of Social Workers who has provided counselling or assistance to the applicant while performing the duties of a social worker. It is not a letter or assessment report from a women’s refuge or a family/domestic violence crisis centre on the organisation’s letterhead. This evidence is not a type of evidence that meets the requirements of IMMI 12/116.
The Tribunal has noted that [Ms D’s] correspondence is from a health centre. The Tribunal has subsequently considered whether the correspondence constitutes a Medical report, hospital report, discharge summary or statutory declaration made by either a person who is: registered as a medical practitioner and is performing the duties of a medical practitioner, or registered as a nurse within the meaning of section 3 of the Health Insurance Act 1973 and is performing the duties of a registered nurse. This correspondence however will not assist the applicant in meeting the requirements to make a valid claim of non-judicial family violence under the instrument. The Tribunal finds that that [Ms D] is listed as a ‘Business Administrator’. There is no evidence that she is a medical practitioner or registered nurse performing such duties as required by the instrument.
The Tribunal furthermore notes that, even if [Ms D] was a medical practitioner or registered nurse as required, the applicant has already provided a medical report from a medical practitioner (the report of [Doctor A]) which the Tribunal has accepted. This report would not assist the applicant meeting the requirements of the instrument unless she is able to also provide a different type of evidence as required by IMMI 12/116.
A medical certificate dated 17 August 2018 combined with a Mental Health Plan from [Doctor B] of [Medical Centre 1] dated 3 July 2018 was submitted. The correspondence states the applicant had been seeking treatment to help manage her anxiety and depression. The brief correspondence does not detail physical injuries or treatment for mental health that is consistent with the claimed family violence. There is no mention or claim of family violence in the correspondence. The Tribunal is not satisfied that this evidence is a type of evidence that meets the requirements of IMMI 12/116.
The Tribunal furthermore notes that, even if it accepts [Doctor B’s] certificate as a type of evidence that meets the requirements of IMMI 12/116, this certificate again will not assist the applicant meeting the requirements of the instrument unless she is able to also provide a different type of evidence as required by IMMI 12/116. The Tribunal notes again that it has already accepted [Doctor A’s] report as a medical report from a medical practitioner that meets the instrument.
A report from [Social Worker B], Social Worker of [Hospital 1] dated 28 September 2017 was submitted. [Social Worker B] states she is writing in her capacity as a social worker. [She] writes of the applicant’s access of social work and counselling services and reports what the applicant has told her through counselling sessions in relation to her claim of family violence. This correspondence, however, is not in the form of a statutory declaration of a member or an individual eligible to be a member of the Australian Association of Social Workers who has provided counselling or assistance to the applicant while performing the duties of a social worker. The correspondence instead is in the form of a letter and therefore is not a type of evidence that meets the requirements of IMMI 12/116.
Correspondence was also provided from [Ms E], Acting Manager of [Agency 4], an alcohol and other drugs program where clients with a history of substance abuse receive treatment. The correspondence, dated 21 February 2020, does not detail or make any claims pertaining to family violence. It is not a type of evidence that meets the requirements of IMMI 12/116.
The Tribunal has provided the applicant with the opportunity to provide appropriate evidence in order to make a valid claim. The applicant had active legal representation in relation to her claim. The applicant has not provided evidence in the nature and form required to make a valid claim of judicially determined, or non-judicially determined, family violence. Whilst the applicant has provided a statutory declaration as required under reg 1.25, and provided one satisfactory type of evidence (the medical report by [Doctor A]), she has not provided evidence specified by the Minister by instrument in writing for reg 1.24(b) of the Regulations, which requires a minimum of two items of evidence from the list in Schedule 1 and no more than one of each type of evidence listed.
Family violence
Has a claim of family violence been made under the Regulations?
In this case there is no suggestion that there has been court tested evidence. The relevant evidentiary requirements to raise a non-judicially determined claim of family violence are in reg 1.24. This requires a statutory declaration under reg 1.25, and the type and number of items of evidence specified by the Minister (in this case) in instrument IMMI 12/116.
Under reg 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 reg 1.24 is provided.
The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes.
A statutory declaration under reg 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: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).
The Tribunal is satisfied that the applicant has provided a statutory declaration under reg 1.25. The Tribunal is satisfied that the applicant has provided one piece of evidence specified by the Minister in IMMI 12/116, in this case a medical report from a person who is registered as a medical practitioner that identifies the alleged victim, and details the physical injuries or treatment for mental health that is consistent with the claimed family violence.
The Tribunal is not, however, satisfied, for the reasons outlined above, that the multiple pieces of correspondence submitted from a range of community and health organisations and individuals are the type and number of items of evidence as specified by the Minister in IMMI 12/116. The applicant has not gone on to provide the Tribunal with a second ‘type of evidence’ as specified under the relevant schedule, that is, Schedule 1.
Accordingly, and given all the above, the applicant has not made a valid claim for family violence as per the Regulations.
The Tribunal regrets that the applicant has not made a valid claim for family violence. The Tribunal recognises the significant evidence that she and her witnesses have provided in relation to her claim. Whilst the Tribunal was open to a finding that non-judicially determined family violence had occurred during the applicant’s previous relationship with her sponsor, the more likely finding was that the Tribunal would have referred the matter to the Independent Expert to make a determination.

The Tribunal, however, is precluded from referring the matter to the Independent Expert quite simply because of the failure of the applicant to make a valid claim of non-judicially determined family violence as required by Schedule 1 of IMMI 12/116. The Tribunal appreciates there can be a degree of confusion in relation to the types of evidence required in making a valid claim for either the Department or the Tribunal under review to assess: some evidence, such as that from a social worker, requires a statutory declaration whilst other evidence, say from a medical practitioner, only requires a report, and evidence from a women’s refuge only requires a letter.
The Tribunal recognises that the applicant has most certainly attempted to meet the criteria to make a valid claim of non-judicially determined family violence. Regrettably, there appears to have been a degree of discombobulation in relation to the format and some of the content of the evidence that has been submitted. The Tribunal does not have the power in such circumstances to cure any defect, however minor, in relation to the types of evidence that have been submitted in support of the claim of non-judicially determined family violence. Schedule 1 of IMMI 12/116 specifies the types of evidence, as well as the detail each type of evidence must include. If such evidence is not provided, the Tribunal has no alternative other than to affirm the decision under review on the basis that a valid claim has not been made for the Tribunal to consider.
At the time of decision the applicant has made neither a judicially determined or non-judicially determined claim of family violence in accordance with reg 1.23. Accordingly, the Tribunal has no valid claim to consider.
Furthermore, there is no evidence before the Tribunal that the applicant meets any of the alternative criteria. There is no evidence or claim that the sponsor is deceased, nor that the applicant and sponsor meet any of the alternate criteria in relation to responsibilities for children.
For the reasons given, the Tribunal finds the applicant does not satisfy the criteria for the grant of the Partner (Residence) (Class BS) visa.
Given the evidence above, the applicant does not meet the alternative criteria in cls 801.221(3)-(6).
There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria in cls 801.221(2A) and (8), which rely on specific procedural scenarios that do not apply in this case.
Accordingly, given all the above, the applicant does not meet cl 801.221.
The Tribunal considers such an outcome to be an unsatisfactory state of affairs. The Tribunal is satisfied that the applicant was in a genuine partner relationship with her sponsor. The Tribunal considers there is at least a likelihood that the applicant is the victim of non-judicially determined family violence during the relationship. The Tribunal notes the strong and consistent testimony provided by her witnesses in relation to these claims. There can be no doubt that the applicant has faced considerable mental health challenges now for many years and has received treatment from a number of medical practitioners, counsellors and social workers. At the Tribunal hearing, the applicant spoke about the challenges she has faced and the considerable efforts she has undertaken to improve her well-being. The Tribunal has considerable concerns for her health and well-being in relation to this case and accepts she has made some significant and importantly genuine attempts to improve her life and happiness these past few years. In such circumstances, the Tribunal regrets that what amounts to a failure to draft and submit types of evidence that meets the specific requirements of IMMI 12/116 has precipitated a situation whereby the Tribunal, at the time of decision, is quite simply unable to consider her claim of non-judicially determined family violence as she has not made a valid claim for the Tribunal to consider under reg 1.23.
The Minister has powers under the Act to replace a decision of the Tribunal on an applicant’s case with a decision that is more favourable to that person if the Minister thinks it is in the public interest to do so. The Minister has provided guidance on the types of unique and exceptional circumstances that could be brought to the Minister’s attention.
Having regard to the applicant’s circumstances, and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
In the circumstances of this particular case, the Tribunal considers the applicant’s case strongly supports its referral to the Minister. The Tribunal has reviewed the Ministerial guidelines and strongly considers there are compassionate circumstances regarding the applicant’s health and psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship. The Tribunal has determined to refer the applicant’s case to the Minister for their attention with its firm support.
decision
The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Justin Owen
Deputy President

[2022] AATA 3253

5 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction