Addisu (Migration)

[2020] AATA 4492

Addisu (Migration) [2020] AATA 4492 (14 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Lieliti Addisu
Miss Nayna Addisu
Mr Galahi Amanuel Addisu

CASE NUMBER:  1805927

DIBP REFERENCE(S):  BCC2015/1876794

MEMBER:Ann Duffield

DATE:14 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a 801 visa:

·cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Statement made on 14 July 2020 at 4.45pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased – non-judicially determined claim of family violence committed by sponsor – statutory declarations by applicant and specified professionals – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 1.25, Schedule 2, cl 801.221(6)(b), (c)

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 20 February 2018 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 30 June 2015 on the basis of her relationship with her sponsor. At that time, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 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.801.221 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.801.221(6)(b), (c)(i). The applicant claims this occurred in this case.

4. The delegate refused to grant the visas on the basis that the applicant did not meet cl.801.221 because she was no longer in a spousal relationship with the sponsor and she was unable to provide documentation that met the evidentiary requirements to support a claim of non-judicially determined domestic violence.

5. The applicants were represented in relation to the review by their registered migration agent.

6. The Tribunal did not conduct a hearing but was able to make a favourable decision on the basis of the information before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence.

9. 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.

10. 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).

11. 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?

12. 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.

13. 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.

14. 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).

15. The applicant has provided the following documents that consistently report a pattern of family violence over a period of three years:

    a.Statutory declaration from Jane Bakos, Social Worker, dated 13 April 2017 made on the basis of an assessment made in March 2017 after the applicant was referred to her by a Family Violence Centre. Ms Bakos names the perpetrator and details the incidence of family violence. Ms Bakos states that in her opinion the applicant has suffered the relevant family violence.

    b.Report (not a sworn statement) from Ben Simon, Psychologist, dated 8 February 2018, with whom the applicant attended 6 sessions. The report does not name the perpetrator, referring only to the applicant’s “ex-husband” and does not state an opinion that the applicant has suffered family violence at the hands of the sponsor, only that her symptoms “could have been precipitated and perpetuated by an abusive relationship”.

    c.Statutory declaration by Jennifer Dawson, Psychologist, dated 24 April 2017. Ms Dawson names the perpetrator and details the relevant family violence. Ms Dawson states that the applicant’s symptoms and experience of family violence appear to be connected.

    d.A statutory declaration from Caroline Karantziz, social worker, dated 28 April 2020. The applicant has seen Ms Karantziz on 3 occasions in her capacity as a social worker providing therapeutic counselling. Ms Karantziz names the perpetrator and details the incidents of domestic violence. Ms Karantziz states it is her opinion that the applicant suffered the relevant domestic or family violence in the form of financial, sexual abuse and rape, emotional abuse of the applicant (and her children) and financial abuse.

    e.Statutory declaration and report from Dr Manjula O’Connor dated 15 May 2018 and 31 July 2018. Dr O’Connor identifies the victims of the family violence perpetrated by the applicant’s husband during the course of their marriage. Dr O’Connor identifies the “husband’s abusive and aggressive behaviour” but does not state an opinion that the applicant is a victim of family violence in those exact words.

    f.Statutory declaration on Form 1410 signed by the applicant where she details the family violence and names the perpetrator.

    g.A number of other documents including a statement from the applicant’s real estate agent who referred her to a domestic violence centre, case notes from that centre setting out the applicant’s claims of domestic violence.

16. In the Tribunal’s mind the documentation provided by the applicant over a long period of time, beginning from when she left the marital home until now, consistently records the incidents of violence she suffered. She attended two psychologists and a psychiatrist at the time of the alleged violence and has continued to seek assistance from professionals in relation to her ongoing suffering. All the documentation gives weight to her claims.

17. The Tribunal finds that some of the documentation does not meet the statutory requirements, for example the report from Ben Simon is not in the proper format and does not name the perpetrator but should nevertheless be given weight to support the applicant’s claims. She attended Mr Simon on six occasions and her claims and symptoms are consistent. The statutory declaration by Jenifer Dawson also does not meet the statutory requirements in that she does snot state an opinion that the applicant suffered family violence, but nevertheless describes the violence and the impact on the applicant. Nor does the statutory declaration from Dr O’Connor meet the statutory requirements as she does not name the perpetrator nor state an opinion that the applicant has suffered family violence. It does however detail the incidents of violence suffered by the applicant and refers to the sponsor’s abusive and aggressive behaviour.

18. There are three documents that the tribunal considers meets the letter of the law; the first is the Statutory declaration from Jane Bakos, a social worker who provided an assessment on the applicant after the applicant was referred to her from a domestic violence centre. The department rejected this document as it was not satisfied that Ms Bakos provided a therapeutic service to the applicant. The Tribunal understands the reluctance shown by the department to accept this evidence however, in the context of all the circumstances and other consistent evidence the Tribunal is minded to from a view that Ms Bakos’ assessment was therapeutic in nature. The applicant was newly separated and dealing with the consequences of domestic violence when she approached a domestic violence centre who then referred her to Ms Bakos. The Bakos assessment can, in this context, be seen as the beginning of the applicant’s therapeutic journey and should not be dismissed as irrelevant evidence because it was the result of a one-off consultation.

19. The second document that meets the evidentiary requirements is the statutory declaration from Caroline Karantziz. This document was the result of three consultations with the applicant during the beginning of 2020 some two and a half years after the incidents of domestic violence and demonstrate the applicant’s continuing struggle with domestic violence. The Karantziz report names the perpetrator and the victim, details the incidents of domestic violence and states clearly that in Ms Karantziz’ opinion the applicant was the victim of family violence.

20. The third documents is the statutory declaration of the applicant herself. She names the perpetrator, details the incidents of domestic violence and states that she feared for her and her children’s wellbeing and safety.

21. 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?

22. 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.

    CONCLUSION

23. 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.801.221(6)(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

24. The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a 801 visa:

    ·cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

    Ann Duffield
    Senior 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.