Attia (Migration)

[2021] AATA 3530

Attia (Migration) [2021] AATA 3530 (16 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Attia Ibrahim Attia

CASE NUMBER:  1927195

DIBP REFERENCE(S):  BCC2015/511190

MEMBER:Nicholas McGowan

DATE:16 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made 16 September 2021 at 3:29pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased – non-judicially determined claim of family violence – types of evidence specified in legislation – forms and contents of statements from applicant and practitioners – no valid claim – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.23

STATEMENT OF DECISION AND REASONS

1. The applicant applied for the visa on 16 February 2015 on the basis of his relationship with his sponsor. The applicant’s provisional visa (subclass 820) was issued 21 April 2015.

2. On 19 September 2019 a delegate of the Minister refused to grant the applicant a permanent visa (subclass 100) under s.65 of the Migration Act 1958 (the Act).

3. On 26 September 2019 an application for review of the refusal decision was lodged with this Tribunal.

4. The Tribunal’s registry constituted the matter to this Member on 24 August 2021.

5. On 25 August 2021, unable to make a favourable decision on the information before it alone, the Tribunal invited the applicant to attend the hearing to provide any evidence and argument(s).

6. The Tribunal conducted its hearing into the review on 16 September 2021 as scheduled.

7. The Tribunal has been provided with a copy of the delegate’s refusal Decision record dated 19 September 2019 by the applicant.

8. At the hearing the applicant confirmed he was no longer in a relationship with his sponsor. The applicant confirmed his sponsor for the Subclass 801 was not deceased. The applicant also confirmed he and his visa sponsor had no children or orders in respect to any children of their relationship. The applicant claimed he was the victim of relevant family violence perpetrated by his sponsor.

9. To support the applicant’s claim of suffering family violence the applicant has provided (relevantly) the following:

10. A statutory declaration (Form 1410) provided by the applicant dated 27 July 2021. The statutory declaration is accompanied by a statement from the applicant.

11. The applicant’s declaration (dated 27 July 2021) is an essential prerequisite in order to make a ‘valid claim’ of having suffered relevant family violence. Although the statement is NOT in the form of a ‘statutory declaration’ (as it is an attachment and no content - whatsoever - has been completed in that declaration itself other than refer to another ‘form’ of document), the Tribunal has nonetheless proceeded as though the Statutory Declaration meets the requirements of the Regulations. The Tribunal makes this distinction because the making of a family violence claim is a serious matter (and may occur without the sponsor ever knowing such a claim has/had been made against them). The Tribunal has given the applicant the benefit of its considerable doubt about the ‘form’ of his declaration because it allows the Tribunal to further consider the remaining evidence in this matter. The Tribunal observes for the record that lawmakers were clear under the existing Act and Regulations that the nature of such claims warranted certain evidence to  be provided in a precise form, and in the case of the “Types of Evidence” specified under Schedule 1 (as examined below) stipulated that evidence must be provided under precise circumstances, and containing precise ‘details’.

12. A letter from Dr Golam M. M. Ahmed of Tristar Medical Group (Coffs Harbour) dated 9 August 2021. This letter is accompanied by a statutory declaration dated 27 July 2021 signed by Dr Golam Ahmed which (other than containing the particulars of the declarant and witness) is blank in response to the questions contained at ‘Part A’ and respond(s) to the questions at ‘Part B’ numbered 8, 9, 10 and 11 with “PLEASE SEE ATTACHED”.

13. The Tribunal is satisfied that the letter (alone) from Dr Ahmed constitutes a ‘medical report’ and as such is a “Type of Evidence’ as outlined in Schedule 1, and which also contains/provides the requisite ‘details’ specified under in Schedule 1.

14. A letter from Sava Tsolis, Psych(Hon); MPsychol (Clinical); MAPS, Principal Clinical Psychologist, of Insight Psychology Group, dated 5 August 2021. The letter is accompanied by a statutory declaration signed 6 August 2021 by Sava Tsolis and which (other than containing the particulars of the declarant and witness) is blank in response to the questions contained at ‘Part A’ and respond(s) to the questions at ‘Part B’ numbered 8, 9, 10 and 11 with the words “PLEASE SEE ATTACHED”.

15. Under Schedule 1 the applicant can provide a 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). Even were the Tribunal to accept that a accompanying letter attached to a statutory declaration was in the ‘form’ specified as a ‘Type of Evidence’ for the purposes of Schedule 1, that ‘declaration’ must include the following detail (Schedule 1): “States in their opinion the alleged victim was subject to family violence, and; details the reasons for the opinion, and; identifies the alleged perpetrator.” In the statutory declaration from Sava Tsolis none of the detail outlined in Schedule 1 has been provided. Even were the Tribunal to accept the letter is part (or the whole) of the statutory declaration, nowhere in that letter does Sava Tsolis state that in her opinion the alleged victim was subject to family violence, or detail the reasons for her coming to that opinion. The Tribunal notes that while Sava Tsolis provides an account and specific details surrounding the applicant’s claims, and details these under the subheading ‘presenting problems’, Sava Tsolis does not state that in her opinion the alleged victim was subject to family violence, or detail the reasons for her coming to that opinion. The Tribunal also observes that under the remaining headings ‘Risk Assessment’, Mental State Examination’, ‘Impression and Diagnosis’ and ‘Suggested Management’ Sava Tsolis does not state in her opinion the alleged victim was subject to family violence, or detail the reasons for her coming to that opinion.

16. The Tribunal considered each of the pieces and ‘Types of Evidence’ provided to the Tribunal and including all the other information in the departmental files – and on the Tribunal’s file (including additional medical documents). The other medical reports (provided by the applicant) were not pertinent to the family violence claim (for the purpose of making a ‘valid claim’) even though they may be considered as part of the applicant’s broader family violence claims, and specifically the level of neglect he believed his sponsor showed him when he underwent surgery.

17. Even were the Tribunal to accept that the applicant’s statutory declaration fulfils the regulatory requirements, and the first medical report is acceptable as a ‘Type of Evidence” stipulated under regulations, the applicant has not gone on to provide the Tribunal with a second ‘Type of Evidence’ as specified under Schedule 1 which contains the detail specified.

18. Given the above, the applicant has not made a valid claim for family violence as per the Regulations.

19. Given all the above, at the time of decision the applicant has made neither a judicially determined or non-judicially determined claim of suffering family violence in accordance with r.1.23. Accordingly, the Tribunal has no valid claim to consider.

20. Furthermore, there is no evidence before the Tribunal that the applicant meets any of the alternative criteria.

21. For the reasons given, the Tribunal finds the applicant does not satisfy the criteria for the grant of the Partner (Migrant) (Class BC) visa.

    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.