Chong (Migration)

[2024] AATA 1672

Chong (Migration) [2024] AATA 1672 (11 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Siew Khim Chong

REPRESENTATIVE:  Mr Jingxin Wu (MARN: 9904341)

CASE NUMBER:  1837049

HOME AFFAIRS REFERENCE(S):          BCC2015/1309280

MEMBER:James Lambie

DATE:11 April 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 11 April 2024 at 10:51am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased and non-judicially determined claim of family violence – verbal abuse and social and financial control – statutory declaration, specified professional statements and additional supporting statements and documentation – verbal abuse and behavioural and financial control – opinion of independent expert properly made and taken as correct – applicant’s agency in relationship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.22, 1.23, 1.24, 1.25(2), Schedule 2, cl 801.221(6)(b), (c)(i)

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 Home Affairs on 6 December 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 6 May 2015 on the basis of her relationship with her sponsor, Lorenzo Saffioti. 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).

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 she had not established that she had suffered family violence committed by her sponsor and that, the requirements of Division 1.5 not being satisfied, she did not satisfy sublcauses 801.221(4) and (6).

5. The applicant appeared before the Tribunal on 25 October 2022, 29 November 2022, and 9 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Veronica Ong, who is the applicant’s daughter, and Angela Ljubic.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. The delegate, after analysing the information and file, was satisfied that the applicant was the spouse of the Mr Saffioti prior to the breakdown of the relationship. On the basis of the evidence, the Tribunal is also satisfied the applicant and the sponsor were in a spousal relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

10. Under reg 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 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).

11. 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?

12. 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.

13. 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 (IMMI 12/116).

14. A statutory declaration under reg 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: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).

15. The applicant submitted:

    ·A medical report by Dr Zhen Zhang, psychiatrist, dated 25 February 2023, in which he identifies the applicant as the alleged victim and diagnoses symptoms consistent with adjustment disorder with depressed mood that he considers consistent with the claimed family violence;  and

    ·A statutory declaration by Mr Joseph Kokotovic, a registered psychologist in NSW, dated 10 November 2022, in which he states his opinion that the applicant was subject to family violence, provides his opinion that the applicant was subject to family violence based on the applicant’s narrative and reported conditions consistent with depression and anxiety, and identifies Lorenzo Saffioti as the alleged perpetrator.

16. The applicant had previously submitted evidence to the Department, including her completed Form 1410 statutory declaration and an accompanying statement, statements from Ms Ong and Ms Ljubic, text message exchanges between herself and Ms Saffioti, her medical records from the Illawarra Shoalhaven Local Health District, a medical certificate dated 30 October 2017, and letters from SAHSSI (a women’s support service) dated 26 June and 26 October 2017.  Additional material, discussed further below, was provided in support of the Tribunal application.

17. The applicant’s Form 1410 statutory declaration, dated 3 November 2017:

(a)    sets out her allegations of family violence (described further below);

(b)    names Mr Saffioti as the person alleged to have committed the family violence against her.

The statutory declaration meets the requirements of reg 1.25(2).

1. The evidence described in paragraph 15 above meets the requirements specified in IMMI 12/116.    Therefore, the evidence presented meets the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23.

   Assessment of claims and evidence

2. The applicant’s claims to have suffered family violence at the hand of Mr Saffioti were referred by the delegate to an independent expert for assessment.  The report of the independent expert was that she was not of the opinion that the applicant had experienced family violence within the definition in reg 1.21.  This opinion, however, is relevant only to the delegate’s decision and it is for the Tribunal, hearing the application afresh, to determine whether it is satisfied that the applicant has suffered relevant family violence.

3. In addition to the material specified above, the applicant provided further statements from herself, Ms Ong, and Ms Ljublic, and a bundle of bank statements and withdrawal vouchers (produced after the last day of hearing).

4. In her statement attached to her Form 1410 statutory declaration, the applicant claimed that the problems in the marriage started in about June 2015, about three months after they were married. She says that he became verbally abusive and controlling: the example she gives is that he repeatedly questioned her about the late hour at which she arrived home from her work as a massage therapist. She said she was afraid of him because he was raising his voice and using offensive language. She said that, because she was dependent upon him for support and her visa, she was afraid of discord in the relationship. She says her vulnerability was increased because she had poor English language skills and did not have friends and family in Australia.

5. The applicant claims that, from that time, there were frequent arguments. These concerned her hours of work, what she did with her money, and social events. She said that she believed that Mr Saffioti wanted her to seek his permission before she engaged in social events, although she accepts that she was never prevented from doing so, only that he was disappointed at not being included in her plans.

6. The applicant claims that finances were a frequent cause of conflict. They opened joint bank accounts early in the relationship and the applicant, at Mr Saffioti’s suggestion, deposited as much as she could into the joint savings account (Commonwealth Bank). She says that, in 2016, he became aware that she was sending money to her daughter in Malaysia to help with education expenses and demanded that she stopped doing so and instead deposit those sums into their joint account. She refused to do so. He also asked her to split her assets, which included a house she inherited from her deceased husband which was held in trust for her daughter. She also refused this request. She does not claim that the refusal of both of these requests had any consequences, although he did continue to make requests of this nature.

7. The applicant claims that, in February 2016, she received word from Ms Ong that her father was in intensive care in Malaysia and that she needed to return as soon as possible. She claims that Mr Saffioti refused to let her leave until he was free to join her. This caused a considerable delay and, in the end, the applicant departed from Malaysia three days before Mr Saffioti. However, by the time the applicant arrived in Malaysia, her father had died. In her words, “I was so upset that I did not make it in time. Lorenzo did not support again with what was most important to me. He seemed to only think about what is best for him. He would make all the decisions and not take what I wanted as being important.”

8. Ms Ong’s first statement describes the same trip to Malaysia as follows:

   In 2016, Mum took SF to visit Malaysia during the Chinese New Year. My mum had asked me to buy the tickets for them and I did the transaction which is paid by my mum for the tickets. Then, in Malaysia SF was unhappy when he could not go fishing as we were not near the sea.

   I put to both the applicant and Ms Ong that it was very strange that Ms Ong’s statement would not mention the death of her grandfather. The applicant suggested that it was simply a detail her daughter had forgotten to mention but maintained it was true.  However, when this omission was put to Ms Ong, she was unable to provide a satisfactory reason for the omission of the purpose of the February 2016 trip to Malaysia. It was also put to her that she had included the administrative arrangements as to who booked and paid for the tickets and the detail that Mr Saffioti was disappointed not to be able to go fishing. When it was put to her that it was not credible that she would remember these details and not the tragic events described by her mother, she remained silent.  Ms Ong does not mention this trip at all in her second statement.   The applicant’s allegation is an important component of her claims, said to exemplify Mr Saffioti’s financial control and callousness, yet I cannot be satisfied that it occurred as alleged, or at all.  I further note that his claimed objections to her undertaking the travel did not affect her capacity to do so.

9. It is difficult to reconcile the additional claims the applicant makes with the objective evidence she has been able to gather (the text messages, the hospital records, the social worker’s notes and the bank documents) with the evidence she provided to the Tribunal, and also between the statements she has provided.

10. The statement accompanying the form 1410 on 3 November 2017 lists, in addition to the February 2016 Malaysia trip, some relatively minor arguments in August 2016 and May 2017. She relates an argument that occurred on 17 May 2017 following a visit from Mr Saffioti’s daughter and her boyfriend arising from the applicant’s preference not to sit on the sofa owing to back pain. She says that she told him that she was tired and stressed because she was going through menopause. She continued: “in the morning, I decided to move out from his house because I did not want to try and bargain with him any more about sex.” This is the first mention she makes of any sexual demands and it is not clear from the evidence as to whether they amounted to demands or some undefined “bargaining”. She claims that he started to threaten her by text message: “ok there’s things that need to get sorted like bank accounts cause without my signature that money cannot get accessed and other things need to be discussed as well.”  She alleges that Mr Saffioti then stole her savings over the next few days.  However, the evidence produced to support those allegations is by no means easy to fit to the applicant’s narrative.

11. The applicant’s 2017 statement was that, on Thursday 15 June 2017:

    I went to the bank to put some money into the joint account and when I asked what the balance was I found out that Lorenzo had taken most of the money out and left me with $266. I felt shocked again as he told me that I couldn’t take money without his signature. He had lied to me! He was in control of paperwork and finances at home as I was new and just learning English. I trusted him and he let me down again. All the bills were in his name.

12. Her 2022 statement was:

    … he told me that money from the joint account will required both signature to withdraw the money from account I do not trust what he told me.

    When towards the end of our relationship.  The $44,000 we contributed jointly into two different accounts. He withdraw the money through multiple withdrawal, without my consent or notice and leaving only $200 in the accounts to keep the account active.

    This was extremely traumatic when I noticed he did with the withdrawal as I was contributing more than half the money into this account. [Errors in original.]

13. The Commonwealth Bank statements provided by the applicant relate to a GoalSaver account in joint names opened on 5 November 2014 by a cash deposit of $3000. The last statement ends on 5 November 2017. The statements are not complete, comprising only the first page of each and omitting the statement for the period 6 November 2015 to 5 May 2016.  There was no explanation as to why partial statements only were submitted, despite the Tribunal’s repeated requests that full statements be provided in order to establish this component of her claims.

14. The statements (so far as can be determined) show that there were roughly monthly deposits of about $200, with irregular larger deposits of a thousand dollars or more. I have been unable to discern any pattern to the larger deposits. There is no indication as to who made any of the deposits.  From an opening balance of $3000, the balance by 11 May 2017 was $21,133.76. The statements indicate that, between 18 May and 30 May 2017, an amount of $20,900 was withdrawn from the account at branches at Nowra, Warrawong and Shellharbour.  The withdrawal vouchers appear to confirm her claims that these funds were withdrawn by Mr Saffioti.

15. The applicant also produced a transaction list from IMB Bank in their joint names for the period 22 April 2017 to 22 June 2017, which shows that Mr Saffioti transferred an amount of $20,805.26 to an account in his name on 22 May 2017, leaving the IMB account with a nil balance.  The evidence therefore indicates that, between 18 May and 30 May 2017, Mr Saffioti withdrew or transferred a total of $41,709.29.  The pattern of withdrawals from the CBA account appears to indicate that Mr Saffioti was concerned to avoid cash transaction reporting thresholds.   It is possible that Mr Saffioti’s text message (“ok there’s things that need to get sorted like bank accounts cause without my signature that money cannot get accessed and other things need to be discussed as well”) may have been intended to prevent her from doing the same thing.  I accept that it may also indicate that this could amount to an acknowledgement on his part that she was entitled to at least some of the funds. 

16. However, the central issue of the applicant’s allegations is whether Mr Saffioti was entitled to withdraw these funds from the joint accounts.  On the applicant’s evidence, she was not aware that either party was entitled to operate the account until she discovered the money was gone on 15 June 2017.  She has produced incomplete screenshots of text message exchanges that seem to have occurred on and around this date.  The quality of the images is too poor to make out the dates on all but one of the screenshots.  She sent the following message at 3.05pm on 15 June 2017:

    “Hey Lorenzo how are you … I know you are go out of the way from me … but I know you are calling me few time because I can’t get your call … just go to voicemail … I going to Optus just can call you back … the money you can have but you lost one thing that is true love … you don’t know how to [message incomplete]” [sic, ellipses in original].

17. While, on the face of it, this text seems to refer to the applicant’s discovery that the money had been withdrawn, when viewed in the context of the other text messages, the Tribunal cannot be so satisfied.  The first screenshot in the bundle contains the following message from the applicant:

    “Give me back my money when u use brought the car”

    The following exchange is also exhibited:

    Applicant:If u give me back my money box money I will give u back the car don’t threats me I will talk my embassy Malaysia

    Saffioti:Money box?  You taken most of that money there was more than 5-6 hundred you left maybe 150 no deal

    What I want you to do is remove post[1] and don’t put it there again and you can drive car but always my car

    [1] There had been a concurrent heated dispute about a Facebook post made by the applicant.

    Applicant:U give me back my money first if not I won’t move [sic – remove?]

    Call police now

    Bullshit money box in there is not enough 5 6 hundred just 300 I just take my part I didn’t take y part I count already before I took

    Saffioti:Look bring back money you sent overseas then we talk otherwise fuck off call who ever you like and stop being difficult remember you had fucking nothing

    Don’t msg me again good bye

    Applicant:I sent money back u also spent my money

    The money I sent it that my money is [message incomplete].

18. In this context, the dispute about money includes an argument as to possession or ownership of a car, the modest contents of a moneybox, and a reference to money the applicant sent her daughter.  It is striking that there is no direct reference to the withdrawals or the applicant’s claim to be entitled to some or all of those funds.

19. I have also considered the near-contemporaneous (26 June 2017) letter from Ms Vacamena of SAHSSI.  Although it describes the applicant as having minimal funds, it does not report any complaint that Mr Saffioti stole any money to which she was entitled. 

1. A further difficulty with the evidence arises when attempts are made to reconcile other aspects of the applicant’s financial claims.  For example, there are no records of any amounts being withdrawn from the joint account to pay for the applicant’s travel to Malaysia, or to remit to her daughter, despite her evidence was that Mr Saffioti objected strongly to these transactions.  I am, however, satisfied that these transactions occurred and consider it likely that she maintained an additional private account which has not been disclosed.  While it is also possible that such transactions are recorded in the undisclosed portions of the joint account, there are no withdrawals visible at all on this account until those mentioned above.

2. I have also considered the applicant’s evidence relating to the incident of 6 or 7 June 2017, described in her 2017 statutory declaration.  This resulted in her brief hospitalisation as a mental health inpatient.  Her claims that the incident was sparked by her finding a sharpened knife and an axe in the bedroom were not repeated in her 2022 statutory declaration, nor in the SAHSSI letter or any of the police or hospital reports, but were maintained in her expert reports of 2023 and her oral evidence to the Tribunal.  I do not find her claims in this respect to be credible.

3. The supporting evidence of Ms Ong and Ms Ljubic rely heavily on reporting by the applicant.  I did not consider Ms Ljubic to be a reliable witness in respect of the matters she claimed to have observed.  These were almost entirely related to her by the applicant or were her interpretations of innocuous events by reference to the applicant’s claims.

4. Overall, the applicant’s claims that Mr Saffioti engaged in coercive controlling behaviour against her, including threats to withdraw his sponsorship, have a certain prima facie plausibility.  However, when the applicant’s specific claims are examined, the Tribunal can accept very few of them.  I note that, despite the alleged threats to withdraw the sponsorship, no steps were taken by Mr Saffioti until 3 August 2017, some months after the relationship had comprehensively broken down.  The text messages between the parties seem to indicate the applicant having no reservations in returning abuse in equally explicit terms.  The objective evidence seems to show that, despite the claims made about Mr Saffioti’s controlling behaviour, the applicant was undeterred in following her plans.

5. For these reasons, the Tribunal is not satisfied for the purposes of reg 1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of the independent expert. On 29 February 2024 the independent expert provided an opinion that the applicant had not suffered relevant family violence. 

6. Specifically, the independent expert’s opinion was:

   ·in respect of the alleged financial abuse, the conduct in the incident did not cause the applicant to reasonably fear for, or to be reasonably apprehensive about, her own well-being or safety, and that the applicant appeared to be in control of her own finances and asserted herself in the relationship;

   ·there is not sufficient evidence that Mr Saffioti perpetrated emotional or verbal abuse that caused the applicant to reasonably fear for, or to be reasonably apprehensive about, her own well-being or safety. The applicant described the couple experiencing marital discord, mostly because of differing expectations regarding their relationship. There was collateral information to suggest that the applicant was also equally as abusive as Mr Saffioti;

   ·there is not sufficient evidence that Mr Saffioti was controlling and caused the applicant to reasonably fear for, or to be reasonably apprehensive about, her own well-being or safety. The applicant appears to have had agency and an ability to say no, which at times led to verbal argument between the couple;

   ·there was no information that suggests that the applicant experienced sexual abuse, or that Mr Saffioti’s conduct in relation to sexual intimacy between the couple caused the applicant to reasonably fear for, or to be reasonably apprehensive about, her own well-being or safety;

   ·that relevant family violence that causes the applicant to reasonably fear for, or to be reasonably apprehensive about her own personal well-being or safety had not occurred;   and

   ·that the alleged perpetrator’s conduct was neither actual nor threatened.

7. Accompanying the independent expert’s report was an acknowledgement signed by the applicant on 18 January 2024 that the psychologist who interviewed her gave her a fair and reasonable opportunity to present her case and be heard, that she understood and was satisfied with the interpreter who services were utilised during the interview, including interpreting the contents of the acknowledgement and that if, for any reason, she felt uncomfortable raising either of those matters during the interview, she could do so directly with her case officer or migration agent within five days from the date of the interview. The Tribunal was not advised of any objection or discomfort within the time period mentioned in the acknowledgement.

8. On 7 March 2024, the Tribunal wrote to the applicant pursuant to s 359A of the act, enclosing a copy of the independent expert’s report, and inviting her response by 21 March 2024.

9. On 19 March 2024, the Tribunal received a brief email message from Ms Amanda Gordon of Armchair Psychology Practice that she had an appointment to see the applicant at 10:30 AM on 20 March 2024. On 21 March 2024, the Tribunal received a submission from the applicant, which contained the following;

   In response to your email sent on 07 March 2024 about the opinion of the Independent Expert that I was not abused by the sponsor, Mr Lorenzo Saffioti, I would like to have the following considered as part of an extension and review process;

   ·I am in Malaysia having surgery on 21 March 2024 and will back in Australia mid-May 2024. I have a medical certificate to cover this period.

   ·I would like to have an independent psychological assessment from a clinical psychologist so I would like to have an extension until the end of June 2024.

   ·I would like to present another report by an independent expert as I believe that the report that was written by LSC Psychology reference: BCC 2015/1309280 was biased and important details were not considered sufficiently, and they were labelled as normal marital conflict. Which I believe was not the case.

   There was a power difference in the relationship from the beginning of the relationship which was not discussed in the report. My husband at that time had power over me.

   When I married my aim was to have a long-term relationship with my husband and marrying my husband was not about bringing my daughter to Australia. My daughter arrived only after the marriage broke down and she is a permanent resident and working as a registered nurse.

   I am a good citizen in Australia, and I have made many friends, I work, pay tax and support myself financially since I arrived in Australia.

   The way the interpreter was used caused bias when I was communicating with the psychologist and with people during the Tribunal process as English is not my first language.

   Key incidents during the marriage which will were not part of normal marital conflict were not considered sufficiently by LSC Psychology reference: BCC 2015/1309280. For example, I was locked into my house by my husband, when I found that my husband kept a knife and axe in the bedroom in fear I locked myself in the bathroom to keep myself safe. Only came out of the bathroom when the ambulance and police helped me out of the house.

   There was evidence that my experience was not part of normal marital conflict as I was seen by staff by SASSHI staff, my GP for depression and a staff member from the women’s information service, to support my view that the incident which led to being taken to hospital was not part of normal marital conflict.

10. On 22 March 2024, the Tribunal responded to the applicant as follows:

    In response to our invitation sent to you on 7 March 2024, you have requested an extension of time until June 2024. The presiding senior member has refused your request.

    You were advised on 24 November 2023 that the Tribunal referred the claim of domestic/family violence and any relevant information on our and Department of Home Affairs files to LSC Psychology (independent expert) for opinion. You were interviewed by the independent expert on 17 January 2024.

    The Senior Member has refused your request given that you have had a significant amount of time to respond to the Tribunal and have known for some time that you would be travelling to Malaysia. The extension of time request was received from 21 March 2024, the same day your response was due.

    If you have further submissions or evidence you wish to submit to the Tribunal, they must be provided by 5 PM AEST on Thursday, 28 March 2024, failing which the Tribunal may make its decision without further reference to you.

11. On 25 March 2024, the applicant’s representative wrote to the Tribunal enclosing a report from Ms Amanda Gordon with the following message:

    Refer to your email sent on 22 March 2024, the applicant would like to provide another report from her current psychologist Amanda and there is no further documents the applicant wants to provide.

12. The Tribunal has considered the report.  It traversed the claims previously made by the applicant and her current circumstances. Relevantly, it concludes:

    In conclusion, taking into account the cultural context, in which Ms Chong did not reveal her true feelings in the marriage and repressed her fear so as to be a good wife, it would seem that Ms Chong left her marriage because of the domestic abuse she suffered.

13. Ms Gordon’s report made only limited attempt assessments of the veracity of the applicant’s claims and whether she reasonably feared for her safety and well-being.  Even were the Tribunal not obliged to take the independent expert’s report to be correct (see paragraph 51 below), it would prefer it over Ms Gordon’s for its greater thoroughness, rigour and independence.

14. The applicant’s submissions of 21 March 2024, alleging bias in the failure to consider important aspects of her claims and the use of the interpreter cannot be accepted.  The matters alleged to have been overlooked or downplayed by the expert were in fact described in detail and subjected to close analysis, as is clear on the face of the report.  The collateral sources she cited as supportive of aspects of her claims were not nearly as corroborative as she claimed, a point noted even in the report of Ms Gordon and addressed in these reasons as well as the report of the expert.  As noted in paragraph 43, the applicant provided a signed acknowledgment that she was given a fair opportunity to present her case and be heard and that she was satisfied with the services of the interpreter.  She had an opportunity to raise any concerns in these respects within 5 days of the date of the interview and did not do so.  In these circumstances, the Tribunal has not found it necessary to refer the applicant’s submissions to the independent expert for comment.

15. 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 reg 1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.

16. Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for reg 1.22.

17. 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

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

    James Lambie
    Senior Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    61.21       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.