Calin (Migration)

[2017] AATA 3115

Calin (Migration) [2017] AATA 3115 (7 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Liliana Calin

CASE NUMBER:  1509595

DIBP REFERENCE:  CLF2013/144805; CLF2015/50469

MEMBER:Rosa Gagliardi

DATE:7 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 07 March 2017 at 11:06am

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Whether the applicant has suffered family violence committed by the sponsor – Where evidence does not comply with requirements – Evidentiary requirements not met – Decision affirmed

LEGISLATION
Health Insurance Act 1973 (Cth), s 3
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.23, 1.24, 1.25, Schedule 2, cl 801.221(6)(b), 801.221(6)(c)(i)

CASES
Dang v Minister for Immigration & Anor [2016] FCCA 1426
Guven v Minister for Immigration & Anor [2006] FMCA 311

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 1 July 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 March 2015 on the basis of her relationship with her sponsor, Mr Matthew Ravenscroft. 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 visa on the basis that the applicant did not meet cl.801.221 because it was considered that the applicant had not established that she had suffered family violence committed by her sponsor and she did not meet any of the alternative subclauses in cl.802.221.

5. The applicant appeared before the Tribunal on 12 December 2016 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, the applicant claims the relationship with Mr Matthew Gerard Ravenscroft, the visa sponsor has ceased and she has been the victim of family violence.

8. The Tribunal has had regard to the information before it and is unable to identify evidence that would point to the applicant and the sponsor never having been in a genuine and continuing spousal relationship (see: Guven v Minister for Immigration & Anor [2006] FMCA 311). The Tribunal notes that the department also did not raise concerns about the relationship’s genuineness at any point. 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.

9. 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).

10. 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?

11. 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.

12. 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 in IMMI 12/116.

13. 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 findings of the Department

14. The department considered the three statutory declarations submitted by competent persons and one Form 1040 by the applicant as non-judicial evidence that she had suffered relevant family violence allegedly perpetrated by her former spouse.  The documents relied on to refer the matter to the Independent Expert (IE) were:

    ·Katrina Sharp – Clinical Nurse, Specialist Mental Health;

    ·Amanda Sheppard, Social Worker

    ·Unami Magwenzi, Clinical psychologist

15. The matter was referred to an IE on 20 March 2015, however, as the department was not satisfied that relevant family violence had occurred.   The IE found that the applicant had not suffered family violence as defined in Regulation 1.23(2)(b) of the Regulations.  The IE gave reasons, including the following, for the decision:

    Ms Cailin denied the perpetration of any physical or sexual violence by the sponsor towards her but alleged that she felt intimidated at times by the sponsor’s alleged behaviour.  She did not, however, present any direct examples of behaviour on the part of the sponsor that could be assessed by the IE as having been the cause of any reasonable fear in Ms Calin.  In contrast to these disclosures, she presented the sponsor as a patient man who had never threatened her verbally.  She described that the sponsor would reportedly become angry at times and engage in emotional outbursts, although examples that she presented of these alleged behaviours on the part of the sponsor appeared to the IE to be more representative of examples of general relationship instability as opposed to family violence per se.

    Ms Calin made some reports that appeared inconsistent with information on file.  For example, she stated in her declaration that the sponsor had threatened her, although in the interview process she indicated that he had never made verbal threats towards her.  There were numerous other apparent inconsistencies in the declarations of competent persons and Ms Calin’s self-reports, both in her declaration and the interview process.  These inconsistencies have had the effect of reducing the reliability and credibility generally of Ms Calin’s self report, and also the declarations made by some of the competent persons…

16. At hearing the applicant stated that she wanted to contest the findings of the IE’s report.  The applicant submitted to the Tribunal in a letter (undated) that the interview was held at the Esplanade Hotel in Port Hedland and that it lasted for 2.5 hours.  The venue was chosen because at that time of day it was quiet and the applicant had agreed to the choice although she did have concerns that perhaps the hotel employees might have overheard, example.  In her letter, the applicant also states that there were misunderstandings between her and the IE.  For example, the applicant wrote, “The psychologist stated that I did not show any sign of fear when talking about my partner’s abusive behaviour.  I must say she is actually exaggerating with saying such things.  I’m saying this because I separated from him end of 2013-beginning of 2014 and this interview took place in April 2015”. 

17. The applicant also wrote that she recovered on her own because she worked in a stressful job with the Department of Child Protection and Family Support and she did not think it was fair to transmit to the children her psychological and emotional state of mind and affect them somehow.  She also, in a short presentation to the IE explained who she was and what she was doing for the community but she did not think the IE actually paid any attention to any of her statements. 

18. Other issues relating to misunderstandings were also raised in this letter to the Tribunal by the applicant.  For example, she did not wish to complain to the Police about her smashed car window as it’s a small community in Port Hedland and the applicant had a lot of friends there.  She strongly believed it was him.  On a different day she had faeces thrown on the front side of the car but she did not report it to the police either. 

19. At hearing the Tribunal explained to the applicant that it appeared that she wanted to have another IE review her case.  In terms of the way the interview was conducted it appears that in remote Australia the IE had to fly in to see the applicant and that the applicant was not able to attend an office of an IE in her area.  The circumstances of where the applicant lived meant that there were limitations in terms of where the interview could be held and it may have been that the IE chose a neutral place in which the applicant could feel comfortable by holding it at the Esplanade Hotel.

20. The Tribunal explained, however, that regardless of the conduct of the interview, the Tribunal had concerns as to whether the department had jurisdiction to refer the matter to an IE in the first instance.  On reviewing the documents submitted by competent persons, the Tribunal was not satisfied that they all met the requirements specified in Schedule 1 of IMMI 12/116.

21. In addition to the reports by Amanda Shppard and Unami Magwenzi the applicant has submitted several other reports but the Tribunal is having difficulty accepting that any, bar one of the reports/statutory declarations submitted meet the requirements for the purposes of Regulation 1.24.  Below is a list of the evidentiary material submitted for the applicant’s non-judicially made claims of family violence in their entirety:

    ·An outpatient Referral Form (Non Admitted Patient Services at WA Country Health Service – Pilbara) dated 23 October 2014 by a doctor stating, “Thank you for seeing 33 year old lady residential care officer from the child protection service, who has been experiencing anxiousness and lots of stress from her previous relationship.  She believes that she has been suffering from domestic violence psychologically.  I would like to refer her for your further assessment”;

    ·Lengthy Form 1410 by the applicant, signed on 3 November 2014, in which the applicant states that she had emerged from a previously abusive relationship and that her relationship with her sponsor all happened very quickly.  According to the applicant when they moved in together he started to react in a very strange way.  He would not throw anything out and had an urge to “hoard things”.  He was also possessive.  He had always lived by himself and had very little contact with his family.  He would not talk to his brothers almost at all and had very few conversations with his dad.  The details of her sponsor’s life appeared very strange and unusual to the applicant.  He even had a twin brother who suffered from paranoid schizophrenia and is in constant need of help from social workers and carers.  She started to think that there was something wrong genetically with the applicant and little by little she started to understand that he had a severe mental condition and had spasmic movement of his head, which could be very bad at time and he could not control it.  She spoke to the sponsor about his sleeping pill addiction as he could only sleep for about an hour a night.  At times she feared he was hallucinating.  He also had a collection of spirits as well as two fridges full of wine. 

    She started becoming afraid of him so she decided she wouldn’t talk to him about the things they used to.  Then the sponsor started becoming more and more abusive and she started to feel more and more abused psychologically and emotionally by him and she was getting into “a deeper and deeper domestic violence situation”.  His place had been dirty with cockroaches, rats and mice and she had been cleaning for 8 weeks but he would not respect any of the work she had undertaken at all, and it was very difficult to maintain a clean house with him.  No matter how many times the applicant tried to explain to him that hygiene was really important inside a house he wouldn’t want to listen to her at all.  His electrical appliances were not properly functioning and she started to feel she was living in a “life threatening environment as well.  I would not even know how to call this very kind of abuse, maybe indirect physical abuse”. 

    He kept telling her that she did not need to look for a job as he already had one and they had money.  Initially she thought it a caring gesture but then realised that he only wanted her to be with her and she began to see him as a time bomb ready to explode.  He would not talk to him for hours after she told him she liked her work or started to talk to her in a sharp way, in “a very angry voice”.  She started to avoid him and she had to admit that he could “very well have become a verbally abusive person when he wanted.  And he did not have to try it to (sic) hard”. 

    He would say that he never cared too much what people thought of him and he had not had much success with women.  The applicant started to see the sponsor more and more “like a lonely psychopath”.   It was clearer and clearer to her that she was living in a domestic violence situation.  In those days her visa was running out and she had to lodge a new visa application or leave the country.  The sponsor knew about her situation, however, he would not do much even though he had promised that he would help the applicant find an employer who was willing to sponsor her.  She started looking for jobs and companies who would hire her.  The sponsor became anxious and stated that if she found a job she would leave the house and that he would not want that to happen.  He would follow her everywhere and went with her when she was looking for jobs.  At that time she saw this as a sign of the fact that the sponsor was in love with her but then he was suffocating her. When she suggested she needed time for herself, he started becoming anxious, would give her a strange look as if he was planning to do something to her.  On many occasions she found the sponsor lying on the lounge couch having shortness of breath.  He kept saying that he would try to control his breathing, and was also doing meditation. 

    On one hand he would seem as possessive and abusive, and on the other hand she would him as someone who succeeded in his life, despite all the bullying he suffered in his childhood and teenage years.  She also saw him as a strong and hard working person. 

    According to the applicant he did not like a woman to be independent and he kept saying that he needed more time for them to get to know each other and that they could only do that if she remained in Australia and not go anywhere else. 

    When her visa was confirmed the sponsor started acting like he was losing control and became really jealous.  He demanded clothes from her he had given her and that had been obtained from another girl.  He was aggressive and yelling.  He even pushed her.  The sponsor culturally also thought she should not complain as a woman.  In the words of the applicant, “He was a mental health patient, and that’s the way he’d always be”. 

    The applicant then moved out and she became more confident and she kept in touch with the sponsor after she left but only through texts. 

    She met one of the Department’s Educational Advisors who told her that with her educational background she may as well study a Masters degree to enable her to obtain a position within the department.  One of the impacts of the “violent relationship” was that she may not have the opportunity to live and work in Australia anymore and she really wanted to make a difference in the children’s “tormented little lives”. 

    The applicant declares she has recently had some skin problems and she scratched herself due to anxiety.  A medical clinician referred her to the hospital for counselling sessions with a clinical nurse.

    ·Statutory declaration from Ms Katrina K Sharp, Clinical Nurse Specialist Mental Health, dated 29 October 2014;

    ·Report by way of statutory declaration by Ms Amanda Sheppard (Social Worker, B.A Hons) Senior Manager at Jilya House who is the applicant’s Manager at her workplace, dated 5 November 2014;

    ·Statutory declaration by Unami Magwenzi, Clinical Psychologist, dated 4 November 2014;

    ·Letter from Dr Elizabeth Kerr, dated 11 May 2015 stating that she had examined the applicant.  The applicant was applying to alter her current visa, had full-time employment in Port Hedland with the Department of Child Protection and was separated from her partner “due to a domestic violence situation”.  Dr Kerr states that she had no reason to doubt the applicant’s history of significant domestic violence situation previously and her reluctance to seek help within a very small isolated community of Port Hedland;

    ·A statutory declaration provided by Ms Katrina K Sharp, Clinical Nurse Specialist, signed on 23 October 2014;

    ·Photos of damage to a car window; and

    ·Further statutory declaration by Janelle Finnigan, Clinical Psychologist, City of Perth, dated 14 May 2015.

22. The Tribunal has assessed each of the evidence individually to form a view as to whether the requirements of Regulation 1.24 are met and has reached the following conclusions.

23. Ms Katrina Sharp, Clinical Nurse, Specialist Mental Health has provided in effect two statutory declarations – one dated 23 October 2014 and another dated 29 October 2014. Schedule 1 specifies that in providing evidence, a registered nurse within the meaning of section 3 of the Health Insurance Act 1973, performing the duties of a registered nurse, is required to identify the alleged victim and detail the physical injuries or treatment for mental health that is consistent with the claimed family violence. 

24. The Tribunal has had regard to paragraphs 7 and 8 of the statutory declaration dated

    
    

    29 October 2014, which relevantly state, among other things:

    7.     Liliana has engaged with mental health services for regular counselling to learn interventions that may assist with her anxiety and stress.

    8.     It is my opinion that Liliana has suffered significant emotional and psychological disregulation as a result of having received emotional abuse at the hands of her ex partner.  Liliana is engaged in therapy and may continue to require support for some time. 

25. The Tribunal accepts that this statutory declaration meets the requirements of Schedule 1 and as such it together with the applicant’s own statutory declaration on go part way to meeting the requirements of Regulation 1.24.  In passing, the statutory declaration submitted by Ms Sharp on 23 October 2014 refers to the applicant having described herself as having been a victim of domestic violence and that she had engaged regular counselling, but the Tribunal is not satisfied that this earlier statutory declaration by Ms Sharp meets the requirements of Regulation 1.24.  As the Tribunal has determined that the statutory declaration of 29 October 2014 does meet the requirements, the deficiencies or otherwise in the declaration of that dated 23 October 2014, are irrelevant. 

1. In terms of the Out Patient referral Form from WA Country Health Service – Pilbara, dated 23 October 2014, this simply states that the applicant “believes” that she had been suffering from domestic violence psychologically but does not detail any treatment provided by the doctor who saw her on that day.  Instead she was referred for further assessment and management.  The Tribunal is not satisfied that this document satisfies Regulation 1.24.

2. The Tribunal has also had regard to the statutory declaration provided by Ms Amanda Sheppard, Social Worker, dated 5 November 2014.  Schedule 1 specifies that a Social Worker must be a member of the Australian Association of Social Workers (AASW) 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 psychologist.  The Social Worker is also required to state in their opinion the alleged victim was subject to family violence; detail the reason for the opinion; and identify the alleged perpetrator.

3. The Tribunal is prepared to accept that Ms Sheppard is a member of the AASW or a person eligible to be a member of that Association even though little evidence of this has been provided.  Nonetheless, the statutory declaration provided by Ms Sheppard has been provided by way of being the applicant’s manager/supervisor and not because she was providing counselling or assistance to the alleged victim while performing the duties of a social worker.  The Tribunal accepts that Ms Sheppard provided advice to the applicant and also had regard for the applicant’s welfare but this could not be said that it was in her professional capacity as a Social Worker who was treating the applicant (see: Dang v Minister for Immigration & Anor [2016] FCCA 1426 (30 June 2016)).

4. The statutory declaration by Ms Sheppard states the terms of the applicant’s employment and that as her line manager in February 2014, she asked if everything was alright because the applicant appeared quite tired but she was also offering to undertake additional shifts if required.  The applicant at that time responded that everything was going well but did not elaborate.  During another supervision session, however, in May, the applicant provided “some indication that she was not feeling as close to her partner as she had been previously and that they had experienced some difficulties but again she did not elaborate.  I recommended that she may benefit from seeing her GP to rule out the possibility of glandular fever or another possible illness, to consider planning some leave and to speak to the local Pharmacist regarding their recommendation to take a good multi-vitamin.  Liliana appeared to accept this advice”. 

5. Then in July 2014, the applicant advised Ms Sheppard that she had separated from her sponsor as he had been psychologically abusing her and that she felt threatened on occasions whilst at home.  Ms Sheppard asked if she was safe now and she advised that she was and he had never physically hurt her but once again did not divulge details.  The applicant then elaborated on 15 and 16 October 2014 during their District Conference (in the work context) that  “her ex-partner had been sponsoring her to gain Permanent Residency in Australia but due to the emotional pressures that he had placed upon her whilst they were living together, which she had experienced as being abusive, she simply could not continue in a relationship with him as she constantly felt that he had an ‘emotional hold over her’.  Liliana again confirmed that she was now safe and was enjoying living in her shared accommodation…”. 

6. The statutory declaration from Ms Sheppard indicates that in a work context, the applicant gradually started to provide her with details of her situation with the sponsor but that

   
   

   Ms Sheppard never actually provided any assistance to her, instead suggesting she see her GP to request counselling.  For these reasons, the Tribunal is not satisfied that this statutory declaration meets the requirements of Regulation 1.24.

7. The Tribunal has then gone on to examine the psychologist’s report by Unami Magwenzi, Clinical Psychologist, dated 4 November 2014.  Schedule 1 provides that a statutory declaration must be made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist.  The statutory declaration is required to state in the psychologist’s opinion that the alleged victim was subject to family violence.  It is also required to detail the reasons for the opinion and identify the alleged perpetrator.

8. Ms/Mr Magwenzi has provided his registration details and the Tribunal accepts that he is a registered psychologist, registered to practice in Western Australia.  The statutory declaration indicates that the applicant attended one session on 3 November 2014 to discuss her recent separation from the sponsor.  It details that initially the applicant found the sponsor loving and caring but that a month into the couple living together, he displayed signs of being controlling and possessive.  The statutory declaration provides what the applicant had related to the psychologist and that “In 2013 I assessed Ms Calin under different but similar circumstances where she was a victim of domestic violence.  In my opinion Ms Calin has once again ended up in an emotionally abusive relationship which constitutes family violence.  Ms Calin requires ongoing counselling to address the psychological impact of both her previous and most recent relationships”. 

9. In the first instance the Tribunal notes that the applicant did not appear to see Mr/Ms Magwenzi for the purposes of treatment and that she only saw him/her once for the purpose of gaining the statutory declaration.  Even if the Tribunal were wrong about this matter, the Tribunal finds that the statutory declaration fails the Schedule 1 requirements because it does not provide the reasons as to why the psychologist considered that the applicant had been subject to family violence.  This is not an insignificant omission.  As such, the Tribunal is not satisfied that Mr/Ms Magwenzi’s statutory declaration meets the requirements of Regulation 1.24 either.

10. The Tribunal has taken into account the statutory declaration by Ms Janelle Finnigan, Clinical Psychologist in Perth where the applicant travelled for an “initial assessment on the 12^th of May 2015”.  Ms Finnigan has not provided her registration details but accepts that this is not at issue.

11. The Tribunal queries whether this report was provided because Ms Finnigan was providing treatment to the applicant.  Indeed in the statutory declaration dated 14 May 2015,

    
    

    Ms Finnigan confirms that the applicant had flown from Port Hedland to Perth “to obtain support for her claim with the Department of Immigration as she had been the victim of family violence perpetrated by her ex-partner”. 

12. The assessment included a “thorough clinical interview and administration of validated self report inventories”.  Further, Ms Finnigan reports that the applicant’s presentation was found to be consistent with psychometric data obtained which indicated the presence of ‘moderate’ anxiety symptoms.  Ms Finnigan goes on to report what the applicant had told her and finalises her declaration by stating, “She completed further clinical questionnaires which supported her claim of low mood (scoring moderate symptoms of depression) and her scores indicate that she is highly likely to be experiencing symptoms of Post Traumatic Stress Disorder (PTSD).  Symptoms endorsed were consistent with the history described.  In summary, Ms Calin presented as an honest and anxious woman, and her psychometric data supported her claims of experiencing symptoms of depression, anxiety and PTSD following the emotionally abusive relationship she was in for twelve months with her ex-partner”. 

13. The Tribunal is not satisfied that the conclusions reached above clearly indicate that Ms Finnigan has arrived at an opinion that the applicant was subject to relevant family violence and does not detail reasons for the opinion, although it could be argued that the psychometric testing was the tool arrived at the opinion.  In any event, nor does Ms Finnigan identify the alleged perpetrator, only referring to the applicant’s “ex-partner”.  For these reasons the Tribunal is not satisfied that the statutory declaration by Ms Finnigan meets the requirements of Regulation 1.24.

14. Lastly the Tribunal has had regard to the Medical Certificate submitted by Dr Elizabeth Kerr, dated 11 May 2015.  This certificate submitted by a medical practitioner, performing the duties of a medical practitioner does not, however, detail the physical injuries or the treatment for mental health that is consistent with the claimed family violence. 

15. At hearing the Tribunal explained to the applicant that unless the evidentiary requirements were met which involved a minimum of two items of evidence (apart from her own statutory declaration) from the list in Schedule 1 (and that no more than one of each type of evidence may be presented for the purposes of paragraph 1.24(b)), then the Tribunal may not have jurisdiction to refer the case on to another IE to review the initial assessment undertaken which was not in her favour.  As the Tribunal was undertaking a de novo review, it was open to it to find that the department did not have jurisdiction to refer the matter to an IE in the first instance because the requirements of Regulation 1.24 were not met. 

16. This is determinative of the review. The evidence presented does not meet the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23.

17. At hearing the Tribunal encouraged the applicant to seek legal advice about the requirements of Schedule 1 if she needed to, however, at the time of writing this decision no further documentation has been submitted.

18. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.801.221(6)(b) and (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

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

    Rosa Gagliardi
    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.