Al Moubayed (Migration)

Al Moubayed (Migration) [2018] AATA 5350 (29 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rawad Al Moubayed
CASE NUMBER:  1714765
DIBP REFERENCE(S):  CLF2011/64284
MEMBER:Hugh Sanderson
DATE:29 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa
Statement made on 29 October 2018 at 11:15am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – victim of family violence – non-judicially determined claim – validity of independent expert’s report – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 1.25; Schedule 2, cls 820.211, 820.221

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 on 31 October 2014 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 20 April 2011 on the basis of his relationship with his sponsor, Danielle El Badar. At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
Relevantly to this matter the primary criteria include cl.820.211 and 820.221 which require that at the time of application and decision, 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.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.221 because the applicant was no longer sponsored by the sponsoring partner and their relationship had ended and a claim by the applicant that he had suffered relevant family violence was not supported by a report from an independent expert.
Background
The applicant is a citizen of Lebanon and is currently 34 years old. The sponsor of the applicant was Danielle El Badar who was born in Australia and is currently 27 years old.
The parties claim to have first met each other in Lebanon on 25 February 2009. They committed to a relationship on 23 March 2009 and the applicant applied for a subclass 300 Prospective Marriage visa which was granted to him on 2 August 2010. He first entered Australia on 15 August 2010 and married the sponsor on 27 October 2010. The current application was filed on 20 April 2011.
The Department received information on 17 May 2012 that the sponsor was no longer in a relationship with the applicant and that she was withdrawing her sponsorship of the application. It was claimed that a report had been made to the police that the applicant had committed family violence against the sponsor and court proceedings were in process. The Department wrote to the applicant inviting him to comment on or respond to this information.
The applicant wrote to the Department on 23 June 2012 claiming he had been subject to family violence committed by the sponsoring partner. He stated that he would be seeing a lawyer to file the necessary documents.
The applicant applied for an Apprehended Domestic Violence Order on 27 June 2012 against the sponsor. That application was finalised on 29 October 2012 with the application being withdrawn on the basis of the sponsor giving, without admissions, undertakings to the court.
The applicant provided the following documents to the Department in support of the claim that he had suffered family violence:
·Statutory declaration of the applicant sworn 21 April 2013;
·Statutory declaration of John Jacmon, psychologist, sworn 28 December 2012; and
·Statutory declaration of Lisa Labasarkis, social worker, sworn 17 December 2012.
The delegate who considered the application was satisfied the parties had been in a relationship which had ended and the sponsor had withdrawn her sponsorship of the application. The delegate was not satisfied the applicant had suffered relevant family violence. The matter was referred to an independent expert for assessment. The independent expert provided a report dated 28 July 2014, concluding that the applicant had not suffered relevant family violence.
The Department put the findings of the independent expert to the applicant. The applicant’s agent responded by claiming that the sponsor’s behaviour did cause the applicant to experience fear for his safety and apprehension for his well-being. The applicant’s agent also said that he had doubts that the interpreter used during the interview was competent. No new claims of any family violence were made by the applicant.
The delegate who considered the application found the relationship between the applicant and the sponsor had come to an end. The delegate accepted the findings of the independent expert that the applicant had not suffered relevant family violence. Accordingly, the delegate found the applicant did not meet the criteria in cl.820.221 and refused the application.
Information to the Tribunal
The review application came before the Tribunal for hearing on 27 November 2015. The Tribunal was not satisfied the applicant had suffered relevant family violence and referred the matter to a second independent expert. At the hearing, the applicant agreed to a list of documents to provide to the independent expert.
The report of the second independent expert found that the applicant had not suffered relevant family violence. Various submissions were made by the applicant’s agent as to why the applicant did not accept this report. The Tribunal did not accept the submissions and accepted the report from the independent expert. The Tribunal issued a decision affirming the Department’s decision to refuse the application.
The applicant appealed against this decision. By consent, the matter was remitted on the basis that the Department had issued a certificate pursuant to s.37A of the Migration Act and the existence of the certificate was not sufficiently disclosed to the applicant. Although these documents were not provided to the independent expert, it was considered that some of the documents the subject of the certificate were relevant, or potentially relevant, to issues arising on the review by the Tribunal.
The applicant appeared before the Tribunal on 15 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the former sponsor of the applicant, Ms El Badar. The hearing was conducted with the assistance of an interpreter in the English and Arabic (Lebanese) languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.
The applicant said that he and Ms El Badar were in a relationship again. He said that Ms El Badar lived in her own place but would stay at his home about five days each week. He said that he did not go over to Ms El Badar’s parents’ home, but they knew about the relationship. He repeated his claims that he had suffered relevant family violence. He said that he had problems remembering things and could not provide details.
The Tribunal raised with the applicant and his agent the certificate on the Department’s file pursuant to s.376 and 375A of the Act. It was noted that the applicant was made aware of the certificate in the hearing invitation. The Tribunal noted that the documents related to an internal process of the Department when instructing the independent expert and as such the Tribunal did not consider it relevant in assessing the applicant’s case. The other documents were allegations that the applicant was violent towards Ms El Badar and as these claims had already been set out in the AVO application of Ms El Badar the associated claims were not relevant. It was noted that these documents would not be, and had not been, provided to any independent expert appointed by the Tribunal. The applicant’s agent did not raise any objection to the manner in which the information would be treated.
Ms El Badar gave evidence in support of the application. She said that she receives a disability Support Pension at the single rate. She lives in a Housing Commission home by herself. She would stay over at the applicant’s home about five days each week. She said that her parents do not know about her resumed relationship with the applicant. She said the applicant does not stay at her home in case any of her family members came over to visit and found him there.
The Tribunal put to Ms El Badar the allegations that the applicant had made as to her conduct which he claimed caused him to fear for his well-being and safety. Ms El Badar denied all of the alleged conduct or doing anything that would have made the applicant fearful for his safety for any reason. She said that she had suffered family violence herself from her family and would never do anything to make another person fear for their safety.
The Tribunal explained the process of s.359AA of the Act to the applicant. The Tribunal explained that it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It explained to the applicant that it would explain why the information was relevant and then invite him to comment on or respond to that information. If he required more time, he could request an adjournment.
The Tribunal referred to the information provided by Ms El Badar which was that her parents did not know that she had resumed a relationship with the applicant. This was inconsistent with the information provided by the applicant and undermined his credibility. The applicant said that Ms El Badar was tense and was not thinking straight. He said her parents were not happy about the relationship but her auntie knows. The Tribunal noted that the applicant and Ms El Badar are cousins.
The Tribunal referred to the evidence of Ms El Badar which was that she had never done any conduct which would have made the applicant fear for his well-being or safety and specifically denied the allegations of driving and other actions that the applicant had made against her. The applicant said that he was putting everything in the past and starting a new future. He accused the Tribunal of trying to undermine his relationship with Ms El Badar.
The Tribunal set out documents which, if the Tribunal concluded the applicant had not suffered relevant family violence, would be provided to the independent expert. The applicant’s agent agreed to the list provided with one amendment.
The Tribunal was not satisfied that the applicant had suffered relevant family violence and referred the matter to an independent expert. As agreed at the hearing, the following documents were provided to the independent expert to assist them in their assessment:
·Withdrawal of sponsorship;
·Letter from the applicant to Department dated 23 June, 2012;
·Application for Apprehended Domestic Violence Order filed by the applicant on 27 June, 2012;
·Advice of Court result from applicant’s AVO dated 26 October, 2012;
·Statutory declaration of Lisa Labasakis dated 17 December, 2012;
·Statutory declaration of John Jacmon dated 28 December, 2012;
·Statutory declaration of the applicant dated 21 January, 2013;
·Independent expert’s report dated 28 July, 2014;
·Response to independent expert report dated 22 September, 2014;
·Provisional Order (ex parte) Apprehended Domestic Violence Order for the protection of the sponsor against the applicant dated 11 May 2012;
·Recording of the hearing before the Tribunal of 27 November 2015;
·Independent expert’s report dated 15 February 2016;
·Letter of Dr Ayoub dated 3 May 2016;
·Independent expert’s report dated 23 May 2016;
·Letter of Dr Ayoub dated 10 July 2017;
·Statutory Declaration of Danielle El Badar sworn 12 March 2018;
·Recording of the hearing before the Tribunal of 15 March 2018; and
·Further material supplied by the applicant’s agent
oCGU initial notification of injury;
oSubmissions of the agent dated 12 April 2016 and 16 June 2016;
oLetters of Dr Darwish, neurosurgeon, dated 7 December 2015 and 28 January 2016;
oLetter of Dr Lee dated 17 June 2015;
oLetter of Dr Dowla dated 1 February 2016;
oSubmissions of the agent dated 19 May 2016; and
oInformation on various drugs being taken by the applicant.
As there were issues as to the condition of and treatment received by the applicant when he was admitted to Liverpool Hospital, a subpoena was issued to Liverpool Hospital to provide the relevant documents. These documents were then provided to both the applicant and the independent expert.
The independent expert issued a report dated 2 October 2018. It was the opinion of the independent expert that the applicant had not suffered family violence. The Tribunal wrote to the applicant on 2 October 2018 pursuant to s.359A of the Act. It noted that the independent expert’s assessment was that the applicant had not suffered family violence committed by the sponsoring partner. A copy of the report was provided to the applicant and the applicant was invited to comment on or respond to this information.
That same day the independent expert provided to the Tribunal an amended copy of the report. The report came to the same conclusions and there were only minor edits in the opinion section. The Tribunal wrote to the applicant providing a copy of the amended report from the independent expert. He was again invited to comment on or respond to the information. He was advised that he was required to respond to the information not later than 17 October 2018.
The applicant’s agent wrote to the Tribunal on Friday 19 October 2018, after the time to provide a response or request for an extension of time had passed. The applicant’s agent claimed that he had to take leave from his practice for some four weeks and had been doing his best to catch up on his work. He asked for an extension of time to 24 October 2018 to provide a response to the Tribunal. The Tribunal responded on 22 October noting that as the applicant had not responded to the invitation to comment on or respond to the information being the independent expert’s report by 17 October 2018 he had lost his right to a hearing or for an extension of time to respond to the information. The Tribunal advised the applicant that the member would be in a position to make a decision on the matter on 26 October 2018, beyond the time the applicant’s agent had sought for an extension, and would take into consideration any information received before that date.
At the time of this decision, the applicant has not responded to the independent expert’s report or contacted the Tribunal again since their email of 19 October 2018. As a result, the Tribunal has proceeded to a decision in the matter without the need for a further hearing to consider the issue of whether the independent expert’s report is valid.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with the visa sponsor has ceased, and he has been the victim of family violence. Although the sponsor attended the hearing with the applicant, there is no claim that they have resumed a spousal relationship as defined in s.5F of the Act or the sponsor is again sponsoring the applicant.
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 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.
In the present case the applicant is seeking to 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?
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.
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)
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).
The applicant provided the following documents in support of the claim that he had suffered relevant family violence:
·Statutory declaration of the applicant sworn 21 April 2013;
·Statutory declaration of John Jacmon, psychologist, sworn 28 December 2012; and
·Statutory declaration of Lisa Labasarkis, social worker, sworn 17 December 2012.
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?
Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of r.1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert. On 2 October 2018 the independent expert provided an opinion that the applicant had not suffered relevant family violence. It is noted that two reports were provided by the independent expert and both these reports were provided to the applicant. Both reports concluded that the applicant had not suffered relevant family violence with the second amended report containing minor edits the opinion section which did not make any change to the finding of the independent expert.
The Tribunal wrote to the applicant pursuant to s.359A of the Act providing a copy of both reports and inviting him to comment on or respond to the information provided. After the time expired to provide a response, the applicant’s agent contacted the Tribunal asking for further time to provide a response. Despite the Tribunal delaying making a decision in the matter and advising the applicant’s agent that it was doing so past the time requested by them to provide a response, the applicant has not responded to the Tribunal or raised any issues as to the validity of the independent expert’s report.

After assessing all the information and interviewing the applicant, the independent expert came to the conclusion that the applicant had not suffered family violence. The Tribunal is satisfied that there is no flaw in the manner the independent expert conducted their assessment of the applicant’s claims that he had suffered family violence or that the independent expert had not appropriately applied the law when considering whether the applicant suffered relevant family violence and considered all relevant matters.
The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.
Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.
Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.820.221(3) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa
Hugh Sanderson
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.

[2018] AATA 5350

29 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction