Dalipovski (Migration)

[2021] AATA 4925

Dalipovski (Migration) [2021] AATA 4925 (2 December 2021)

WRITTEN STATEMENT OF DECISION

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – relationship ceased – family violence provisions – genuine relationship prior to claimed family violence – acceptable evidence of non-judicial claim – decision under review remitted         

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2, cl 100.221; rr 1.21, 1.23

1. This statement of a decision and reasons is made in respect to case 1833531 concluded after a review of a delegate’s visa refusal decision dated 13 November 2018 made on behalf of the Minister (Department of Home Affairs case files OSF2015/03062 and BCC2015/3147192).
   
   

2. The applicant first applied for the Subclass 309/100 visas on 26 October 2015. The applications were made on the basis of the parties claimed relationship with her sponsor and Australian citizen Avzi Dalipovski. The applicant sought a review of the 13 November 2018 Subclass 100 refusal decision to this Tribunal on 15 November 2018. A hearing was conducted as part of this review.
   
   

3. The applicant was granted the first stage temporary partner Subclass 309 visa by the Minister on 3 October 2016.
   
   

4. The sponsor advised the Department in writing on 15 September 2017 that he wished to withdraw his sponsorship as his relationship with the applicant had broken down.
   
   

5. Relevantly, the applicant contends she meets the alternate criteria for the grant of the Subclass 100 permanent visa under the family violence provisions contained under law in clause 100.221.
   
   

6. The Minister’s delegate, in her refusal decision dated 13 November 2018 found, “After analysing the information [in respect to the parties’ relationship] I am satisfied that you were the spouse of your sponsor prior to the relationship breakdown and claims of family violence”.
   
   

7. Notwithstanding the above finding of the Minister’s delegate, and having considered the matter de novo, the Tribunal has come to a like-finding. All the evidence before this Tribunal supports the contention and claim that the applicant and sponsor were in a genuine and continuing relationship consistent with the requirements of the Act and Regulations prior to its break down.
   
   

8. Division 1.5 of the Regulations outline when family violence is taken to have occurred. Acceptable evidence consistent with the requirements of the Act and Regulations, as elaborated in Schedule 1 of Legislative Instrument IMMI 12/116 (in respect to a non-judicial claim) have been provided to this Tribunal. The evidence, which includes a doctor’s (general practitioner’s) report, social worker’s statutory declaration and a statutory declaration by the applicant herself, will as a matter of law be shared with the Secretary of the Department as they form the basis for a finding by this Tribunal that a ‘valid’ non-judicial claim of having suffered family violence has been made by the applicant.
   
   

9. Further to the above, not only has a ‘valid claim’ been made because the prescribed forms and information have been provided, in addition the Tribunal has been satisfied that the applicant claims in respect to the family violence are made, and therefore the applicant satisfies the alternate and relevant subclause available under clause 100.221 of Schedule 2.
   
   

10. Given all the above, the appropriate course is to remit the application to the Minister with the direction the applicant satisfies clause 100.221 in respect to the Subclass 100 visa.

Statement made Thursday 2 December* 2021 at 12:53pm

* [mistakenly wrote the month of ‘November’ in original statement made as at 12:52pm on Thursday 2 December 2021]

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

1. 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.

2. 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

1. 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.

2. 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

1. 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.

2. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.