Ekawaty (Migration)

[2023] AATA 1162

Ekawaty (Migration) [2023] AATA 1162 (26 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Dian Ekawaty

REPRESENTATIVE:  Mr Yuri Anthony Marshall (MARN: 0320165)

CASE NUMBER:  2003800

HOME AFFAIRS REFERENCE(S):          BCC2017/2847658

MEMBER:P. Maishman

DATE:26 April 2023

PLACE OF DECISION:  Perth

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

Statement made on 26 April 2023 at 2:52pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – not satisfied the applicant continued to be the spouse or de facto partner of her sponsor – relationship with sponsor had ceased – victim of family violence – evidence presented does not meet the requirements of reg 1.24 – a non-judicially determined claim of family violence has not been made under reg 1.23 – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.21, 1.23, 1.24, Schedule 2, cl 801.221

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 7 February 2020 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 9 August 2017 on the basis of her relationship with her sponsor, James Easton. 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 the delegate was not satisfied the applicant continued to be the spouse or de facto partner of her sponsor, or that she met any of the exceptions to the requirement.

5. The applicant appeared before the Tribunal on 26 April 2023 to give evidence and present arguments.

6. The Tribunal was assisted by an interpreter of the Indonesian and English languages.

7. The applicant was represented in relation to the review. The applicant’s representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. There is a two-stage process for onshore Partner visas. An applicant must first hold a temporary visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on the relationship having continued for a period of at least two years. In the present matter, the Tribunal is considering the second, permanent stage, for the Class BS (Resident) (Subclass 801) visa.

10. The Tribunal had before it a copy of the Department’s file.

11. The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The delegate’s decision record outlines the visa application history. In summary the applicant was granted a Subclass 820 visa on 14 May 2018. The Department received no response from the applicant to its invitations to comment on information, and to submit any additional information, about information it received on 21 November 2018 that her relationship with the sponsor had broken down.

12. The Tribunal wrote to the applicant on 1 March 2023 inviting her to provide information that her relationship with her sponsor was ongoing or if not, relevant to the exceptions to that requirement. The applicant gave the Tribunal a letter entitled ‘to whom it may concern’ dated 14 March 2023 indicating her relationship with the sponsor ceased and she had suffered family violence. The applicant requested two weeks additional time to provide the required evidence.

13. The Tribunal wrote to the applicant on 14 March 2023 and invited the applicant to provide information in accordance with the statutory provisions in Division 1.5 of the Regulations. The Tribunal included a copy of Division 1.5 and the then ministerial instrument IMMI 12/116 (now revoked by LIN 23/026). The applicant gave the Tribunal a copy of an email dated 15 March 2023 confirming interaction with an organisation 1800RESPECT on 6 March 2023; a letter dated 28 March 2023 from Vesna Sutherland, Salvation Army; and a letter from Centrecare dated 31 March 2023. 

14. The applicant told the Tribunal in her evidence she engaged her current migration agent who said it appeared she had been subjected to psychological/mental abuse and she should gather the appropriate evidence and claim she was subjected to family violence. The applicant told the Tribunal she gave her agent a statutory declaration dated 31 January 2019 and held a copy of that document up to the camera during the hearing. The applicant also showed the Tribunal two documents from Relationships Australia, one of which appeared to be confirmation of an appointment and the other a certificate of attendance she claims she gave to her migration agent. The Relationships Australia documents appeared to be single sentence/paragraph documents and did not provide any detail of the applicants claimed circumstances or contain an opinion about the applicant’s claims. The applicant said her migration agent emailed her every month to see if she had gathered the evidence but she did not know how to source the relevant evidence. She visited Salvation Army once and obtained the letter dated 28 March 2023. She did not attend the appointment listed with Centrecare on 4 April 2023 because she could not get time off work. She did not make another appointment. On Monday 21 April 2023 she tried to make an appointment to see a psychologist but was unable to do so before the hearing.    

15. The Tribunal declined the applicant’s request for additional time to gather evidence to make a claim of family violence. The applicant has had ample opportunity to gather the statutory evidence required to make a claim of family violence. As noted in the delegate’s decision record the applicant was invited to provide information about her relationship on 1 March 2019 and did not do so. The delegate notes the applicant did not provide evidence that her relationship with her sponsor was continuing or provide information she met the exceptions to that requirement. The applicant was invited again to provide information about her continuing relationship when the Tribunal wrote to her on 1 March 2023 inviting her to provide information about her relationship, and on 15 March 2023 when the applicant was invited to provide information in writing about the breakdown of her relationship in accordance with the statutory provisions in Division 1.5 of the Regulations. The Tribunal explained at the hearing that although additional time was not granted, the Tribunal is required to take into account any evidence it received before it made its decision.

16. 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.

17. 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).

18. In the present case the applicant is seeking 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?

19. 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.

20. There is no evidence before the Tribunal that there has been a joint undertaking to a court made by the applicant or the alleged perpetrator of family violence.

21. The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes (see LIN 23/026).

22. 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).

23. Regulation 1.21 defines ‘statutory declaration’ to mean a statutory declaration under the Statutory Declarations Act 1959. Section 8 of the Statutory Declarations Act 1959 provides that a statutory declaration must be in the prescribed form and made before a prescribed person. Schedule 1 of the Statutory Declarations Regulations 2018 contains the prescribed form for the purpose of making a statutory declaration. 

24. The applicant told the Tribunal that she prepared her letter dated 14 March 2023. She took that letter to Victor Churchill Dale JP who confirmed that she understood what she had written and signed and dated each page. The applicant then signed each page and Mr Dale’s wife witnessed her signature.

25. The Tribunal is not satisfied the applicant’s letter dated 14 March 2023 is a statutory declaration is defined in reg 1.21. The letter is not in the prescribed form detailed at Schedule 1 of the Statutory Declarations Regulations 2018. The letter does not identify the applicant’s address or occupation or that she is making a declaration under the Statutory Declarations Act 1959. The applicant’s signature is undated and the place at which the declaration was made and witnessed is not disclosed.

26. The email from 1800RESPECT dated 15 March 2023 identifies that organisation offers counselling support to people that have been victims of domestic, family and sexual violence and workplace harassment. The Tribunal acknowledges the confirmation of interaction with the applicant on 6 March 2023. The email is not a type of evidence described and does not meet the evidentiary requirements specified at Schedule 1 of LIN 23/026.

27. Ms Vesna Sutherland provided a letter on Salvation Army letterhead dated 28 March 2023. Ms Sutherland recites the applicant’s relationship as narrated to her by the applicant. Ms Sutherland identifies herself as a social worker working for the Salvation Army. Ms Sutherland does not state her professional opinion about whether the applicant’s allegations are consistent with having been subjected to family violence. Ms Sutherland’s letter does not meet the evidentiary requirements specified at Schedule 1 of LIN 23/026.

28. The letter dated 31 March 2023 from Centrecare is addressed to the applicant and details appointments in relation to family and domestic violence counselling. The letter is not an item of evidence and does not contain information that must be included to be considered a type of evidence described for any of the types of evidence specified at Schedule 1 of LIN 23/026.

29. Therefore, the evidence presented does not meet the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has not been made under reg 1.23.

30. 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

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

    P. Maishman
    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.