Alves Magalhaes (Migration)
[2025] ARTA 142
•5 February 2025
ALVES MAGALHAES (MIGRATION) [2025] ARTA 142 (5 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Geraldo Magela Alves Magalhaes
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2119975
Tribunal:General Member Downes
Place:Brisbane
Date: 5 February 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa
Statement made on 05 February 2025 at 2:58pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship with sponsor ceased – family violence claim – evidence from social worker provided – not a valid type of evidence for the purposes of establishing a non-judicially determined family violence claim – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.21, 1.23, 1.24, Schedule 2, cl 801.221CASES
MICMSMA v Gupta [2022] FCAFC 51STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 December 2021 to refuse to grant the visa applicant (the applicant) a Partner (Residence) (Class BS) Subclass 801 visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 June 2019 based on his relationship with the visa 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 (Cth) (the Regulations).
The delegate refused to grant the visa because the applicant did not meet cl 801.221 of Schedule 2 to the Regulations because the relationship between the applicant and the visa sponsor had ended and there was no evidence before the delegate that the applicant satisfied any alternative criteria for the grant of the visa.
The applicant appeared before the Tribunal on 5 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former employer.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUE AND LAW
In the present case, the applicant claims the relationship with the visa sponsor has ended, and that he experienced family violence. The applicant seeks to establish family violence based on a non-judicially determined claim of family violence.
Under reg 1.23 of the Regulations, a person is taken to have experienced 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 experienced relevant family violence or an opinion of an independent expert has been given that the alleged victim has experienced relevant family violence. Relevant family violence is defined in reg 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: reg 1.23(3), (5), (7), (12), (14).
The family violence criteria require that ‘the relationship between the applicant and the sponsoring partner has ceased’. The relevant partner relationship (i.e. spouse or de facto, as defined in the legislation) must therefore have existed before it can be determined that the relationship ‘has ceased’. Accordingly, the first issue in the present case is whether a partner relationship existed between the applicant and the visa sponsor. If the Tribunal determines that the partner relationship never existed, the family violence exception to the relationship continuing does not arise for consideration.
Whether or not a relationship ever existed is ultimately a question of fact for the Tribunal. It is not bound to accept that a relationship did exist just because a delegate based their decision on the family violence criteria, nor, when reviewing a decision relating to a permanent partner visa, must it accept a previous decision to grant a provisional partner visa based on the relevant partner criteria being met, as being correct: MICMSMA v Gupta [2022] FCAFC 51. Rather, it is for the decision maker on the permanent partner visa application to make a decision by reference to their own assessment of the merits of the application, including the existence of the relationship, based on the materials before them.
If the Tribunal is satisfied that the requisite relationship existed, the second issue is whether the visa applicant suffered relevant family violence. 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 (see Migration (Specification of evidentiary requirements—family violence) Instrument (LIN 23/026) 2023).
There is no general obligation on the Tribunal to point out what evidence is required to meet the family violence provisions, or to disclose its thought processes in advance of its decision as to why or whether evidence provided is deficient: Gansham v MICMA [2023] FedCFamC2G 633 at [87]–[91], MIAC v Pham [2008] FCA 320 at [51]–[54], Lawani v MIAC [2013] FCCA 114, at [53] – [55], Karsten v MIBP [2015] FCCA 534.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is a 41-year-old man from Brazil. He applied for the visa that is the subject of this review application based on his relationship with the visa sponsor, a 47-year-old Australian citizen by birth. The visa sponsor was once divorced with one child from her previous marriage.
According to the visa application, the applicant and the visa sponsor met in December 2017 and married in December 2018. At the time, the applicant was in Australia on a student visa to study English.
On 21 August 2021, the visa sponsor notified the department that the relationship between the applicant and the visa sponsor had ended and that she wished to withdraw her sponsorship.
By letter dated 26 October 2021, the department notified the applicant that it had received information that the relationship between the applicant and the visa sponsor had ended, and invited the applicant to provide additional information to support consideration for the grant of the visa despite a relationship breakdown.
The applicant did not respond to the department’s letter. Accordingly, on 14 December 2021, the department refused the applicant’s visa on the basis that the relationship between the applicant and the visa sponsor had ended and the applicant had not made any claim, or submitted any evidence, to suggest that any other circumstances which would allow for the grant of the visa applied.
The applicant first indicated his intention to make a family violence claim on 5 December 2024, via an email from his representative.
On 20 December 2024, the Tribunal issued a direction to provide documentary evidence regarding the family violence claim by 29 January 2025. The direction was provided with an attachment which outlined, among other things, the evidence required to make a non-judicially determined family violence claim.
Did the requisite relationship exist?
The applicant’s representative submitted that:
Please note that the applicant’s relationship was genuine and continuing, as proved to the Department and confirmed by receiving the approval of the 820 visa on 09 March 2021.
Therefore, there is no need to discuss the merits of their genuine relationship and focus only on the non-judicial evidence provided in this matter to confirm that the applicant was a victim of domestic violence and should have his permanent visa subclass 801 granted on the basis of the below legislation.
I do not accept this submission. It is inconsistent with the case law referred to at paragraph 10. However, I have considered the documentary evidence submitted to the department and I am satisfied, based on this evidence, that the applicant was the spouse of the visa sponsor before the relationship ended.
Has a claim of family violence been made under the regulations?
The representative’s submissions summarise the evidence to support the applicant’s claim relevantly as follows:
a. Medical Evidence:
i. Attachment 5- Medical letter from Dr Arun Agrawal from 170.08.2021
ii. Attachment 6 - Medical_Discharge Letter_Gold Coast Hospital from Dr Lauren
iii. Attachment 8 - Medical_Medicare Claim History Statement_Aug to Oct 2021
iv. Attachment 9 - Medication_Diazepam & Venlafaxine from 28.09.21
b. Social Worker Evidence:
v. Attachment 10 - The way back support mission from Wesley Mission - confirming the applicant’s attendance from 20th September 2021 to 9th December 2021.
c. Psychologist Evidence:
vi. Attachment 3 - Psychologist Letter from Brazil - Nov2020 - confirming that the applicant was experiencing significant relationship issues, which at times left him homeless and attending sessions from his car, where he was sleeping overnight.
Attachment 11 - Psychotherapist Report from Brazil - treatment 2021 to 2022
LIN 23/026 provides eight ‘types of evidence’ that may be submitted to support a family violence claim, being medical, police, child welfare officer, family violence support service provider, social worker, psychologist, family consultant/family relationship counsellor, and education professional. Each ‘type of evidence’ is divided into ‘items of evidence’, which must include certain information: LIN 23/026(4)(2). A minimum of two items of evidence must be provided, and each item must be of a different type of evidence: LIN23/026(5).
Relevant to the applicant’s claim, the types and items of evidence, and required information, are extracted below.
Type of evidence
Items of evidence
Information that must be included
Medical Any of the following made by a medical practitioner, registered nurse or midwife who is acting in their professional capacity:
(a) medical report;
(b) hospital report;
(c) discharge summary;
(d) letter;
(e) statutory declaration.
The item of evidence must:
(a) identify the alleged victim; and
(b) detail the injuries or treatment of the alleged victim that may be consistent with family violence.
Social worker Any of the following made by a social worker who is acting in their professional capacity:
(a) report;
(b) letter;
(c) statutory declaration.
The item of evidence must:
(a) state that the alleged victim has made a claim of family violence; and
(b) state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and
(c) identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
Psychologist Any of the following made by a psychologist who is acting in their professional capacity:
(a) report;
(b) letter;
(c) statutory declaration.
The item of evidence must:
(a) state that the alleged victim has made a claim of family violence; and
(b) state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and
(c) identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
Medical
The medical letter from Dr Agrawal identifies the applicant and states “Problem: 37 years male with suicidal ideation, low mood, poor sleep, feels anxious for opinuion [sic] and management please.”
The discharge report from the hospital states:
The diagnosis was Low Mood; Poor sleep
…
Geraldo presented to ED with low mood and poor sleep. He is known to have anxiety. There was no acute suicidal ideation.
I have given him the phone number for the mental health team and have advised him to call them tomorrow or anytime.
Unfortunately I am not able to give him medication to sleep. I have advised him to see his regular doctor to consider medication for sleep.
There is no reference to family violence or the applicant’s relationship with the sponsor in these documents. However, on balance, I accept that low mood can be an ‘injury’ that may be consistent with family violence. Accordingly, I accept these documents as items of medical evidence for the purposes of LIN 23/026 and reg 1.24(b).
I note that the other medical evidence submitted to the Tribunal does not fall within the items of evidence referred to in LIN 23/026.
Social worker
The letter from The Way Back Support Service, Wesley Mission states:
The Way Back Support Service provides non-clinical care and support for three months following a suicidal crisis. Through assertive outreach, Support Facilitators connect people to clinical and community-based services according to induvial [sic] needs. To ensure they are safe and accessing the community-based support that is available.
The objectives of The Way Back Support Service are to:
• improve access to high-quality aftercare to support at risk individuals to stay safe;
• build capacity of individuals to self-manage distress and improve mental wellbeing;
• improve links with clinical and community-based services to meet individual needs and circumstances;
• increase social connectedness and links to supportive networks (families, friends, peers and carers); and
Ultimately, the above objectives are intended to contribute to reducing the risk of any further suicidal crisis’s.
Mr Magalhaes engaged with The Way Back on the 20th Sept 2021.
After being linked with supports according to need Mr Magalhaes exited the program on the 9th of December 2021.
The letter does not state that the applicant has made a claim of family violence, provide a professional opinion about the claim, or identify the alleged perpetrator, as required by LIN23/026. Accordingly, it is not a valid type of evidence for the purposes of establishing a non-judicially determined family violence claim.
Psychologist
The first psychologist letter states:
In Brazil, Mr Geraldo had already dealt by me with the complaint of anxiety and for making excessive use of alcohol (CID). Today this problem is repeated, which occasionally changes his behaviour. This problem presents itself on a recurring basis with the aggravation of being far from your country and we are still going through the COVID-19 pandemic.
Mr Geraldo looked for my services spontaneously, and has frequent psychotherapy sessions to alleviate the problems mentioned above.
The second psychologist letter states:
GERALDO MAGELA ALVES MAGALHAES, that he was under my psychotherapeutic care from October 2021 to November 2022.
Geraldo sought my help due to anxiety crises. According to his accounts, he was undergoing a marital crisis, and his relationship with his wife was quite turbulent, sometimes resulting in him being expelled from his house. On one occasion, we had an online session with him inside his car as he had nowhere else to stay.
As per his reports, his wife disrespected him and used his money indiscriminately, leaving him without resources to live elsewhere.
His anxiety crises led to obsessive thoughts, including suicidal ideation, as a means to alleviate his pain.
Living outside his home country, he often felt lost and without anyone to turn to. We mostly held weekly sessions, and treatment concluded in November 2022, by which time he was already separated.
Neither letter states that the applicant has made a claim of family violence or provides a professional opinion about the claim, as required by LIN23/026. Accordingly, it is not a valid type of evidence for the purposes of establishing a non-judicially determined family violence claim.
Conclusion
The applicant has not submitted two different types of evidence to establish a family violence claim in accordance with LIN 23/026 and reg 1.24(b). Accordingly, the application is not taken to include a non-judicially determined claim of family violence because, relevantly, reg 1.23(9)(c) is not satisfied.
The requirements to establish a non-judicially determined claim of family violence are clearly set out in the Regulations. The Tribunal sent the relevant information to the applicant in December 2024. I note that relevant information was also sent to the applicant by the department under letters dated 10 December 2020 and 26 October 2021.
I note that the representative indicated in December 2024 that the applicant was ‘trying to get the police report as well’. No documentary evidence has been submitted to the Tribunal to indicate that any police report has been made or requested. The applicant did not request additional time to provide a police report.
For these reasons, the applicant does not meet the requirements of cl 801.221(6)(c) 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 (Residence) (Class BS) visa.
Date(s) of hearing: 5 February 2025
Representative for the Applicant: Mr Carllo Ettore Oliveira Castriota
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