El Jejieh (Migration) - [2021] AATA 4013

El Jejieh (Migration) [2021] AATA 4013 (24 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Samih Mostafa El Jejieh
CASE NUMBER:  2013066
DIBP REFERENCE(S):  OSF2013010580
MEMBER:Kira Raif
DATE:24 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:
·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations

Statement made on 24 September 2021 at 12:27pm
CATCHWORDS
MIGRATION –Partner (Migrant) (Class BC) visa – Subclass 100 – Federal Circuit Court remittal –applicant has suffered family violence committed by the sponsor – relationship with sponsor has ceased – evidence of family violence has been presented in accordance with r.1.24(1)(b) – independent expert’s opinion – violence occurred during the relationship –decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 375A
Migration Regulations 1994, rr 1.21, 1.22, 1.23,1.24, 1.25, 1.26, Schedule 2, cl 100.221
CASES
Muliyana v MIAC (2010) 183 FCR 170
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 March 2016 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 23 October 2013 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.
In June 2018 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review and the Federal Court remitted the matter for reconsideration.
There are s. 375A certificates on the Departmental file and the applicant was informed of these. At the commencement of the hearing the applicant’s representative confirmed that this was no longer a live issue.
The applicant appeared before the Tribunal on 8 March 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
At the time the application was made, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The primary criteria must be satisfied by at least one applicant. Relevantly to this matter the primary criteria include cl.100.221 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.100.221(4)(b), (c)(i). The applicant claims this occurred in this case.
In the present case, the applicant claims the relationship with the visa sponsor has ceased, and he has been the victim of family violence.
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 family violence need not have caused or contributed to the cessation of the partner relationship, nor need it have occurred before the relationship ceased: Muliyana v MIAC (2010) 183 FCR 170.
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?
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.
The applicant in this case is seeking to rely on evidence referred to in r.1.24(1)(b) – namely, a statutory declaration under r.1.25 together with two statutory declarations under r.1.26 by competent persons who hold different qualifications.
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).
A statutory declaration by a competent person under r.1.26 must: be made by a competent person (as defined in r.1.21(1)); set out the basis of the person’s claim to be a competent person for the purposes of the Regulations; state that in the competent person’s opinion, relevant family violence has been suffered by a person; name the person who in the opinion of the competent person has suffered that relevant family violence; name the person who in the opinion of the competent person committed that relevant family violence; name the person to whom the conduct was directed and their relationship to the alleged victim (if the conduct was not towards the alleged victim) and set out the evidence on which the competent person’s opinion is based.
The applicant provided to the Tribunal a number of documents attesting to the family violence. These included a report from a medical professional (a GP) and a statement from a social worker. Updated evidence from these professionals was presented by the applicant in his submission to the Tribunal of 5 March 2021. The Tribunal is satisfied the statutory declarations meeting the requirements of r.1.25(2) and 1.26. The Tribunal is satisfied that evidence of family violence has been presented in accordance with r.1.24(1)(b) and that therefore a non-judicially determined claim of family violence has been made under r.1.23.
Has the applicant suffered family violence?
In oral evidence the applicant stated that the sponsor was under the influence of her relatives and she wanted to marry a relative. Since their relationship ended, she has married her cousin.
The applicant states that he had experienced family violence from the sponsor and her family but despite that, he did not want the relationship to end. In oral evidence, the applicant described one incident in 2015 when the sponsor wanted him to leave the house and on that day the sponsor’s family wanted to attack him but her mother stopped them and he left the family home. The applicant says that despite that, the relationship did not end and they reconciled afterwards. The applicant states that he and the sponsor always had arguments and she threatened to send him back to his home country and he felt annoyed and upset and he experienced stress and irritability. The applicant states that after they reconciled, they continued to have verbal arguments and the sponsor’s mother always threatened him with immigration. The applicant states that the relationship finally ended around January 2016 and in 2016 the sponsor applied for a divorce in Lebanon.
Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of r.1.23 that the applicant has suffered relevant family violence. In accordance with the regulation, the Tribunal sought the opinion of an independent expert. On 24 September 2021 the Tribunal received the independent expert’s opinion that the applicant had suffered relevant family violence. 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 r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.
The Tribunal acknowledges the evidence of the various aspects of the relationship provided with the application. The Tribunal is mindful that the delegate accepted that there was a genuine relationship between the applicant and the sponsor before its breakdown. Having regard to that evidence, and the circumstances of the family violence set out in the independent expert’s report, the Tribunal is satisfied, on balance, that the violence occurred during the relationship. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for r.1.22.
Conclusion
As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl.100.221(4)(b) and (c). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:
·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations.
Kira Raif
Senior Member