Gale (Migration)

[2023] AATA 545

Gale (Migration) [2023] AATA 545 (2 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Natalia Charlotte Vivienne Gale

REPRESENTATIVE:  Ms Adele Wan

CASE NUMBER:  1900862

HOME AFFAIRS REFERENCE(S):          BCC2016/3407766

MEMBER:Deputy President Justin Owen

DATE:2 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cls 801.221(6)(b) and (c)(i)(A) of Schedule 2 to the Regulations

Statement made on 02 February 2023 at 3:27pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – parties were in a de facto relationship –relationship ceased– a non-judicially determined claim of family violence has been made under reg 1.23 – victim of non-judicial family violence – Independent Expert’s opinion – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.21,1.23, 1.25, 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 January 2019 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 is a female French national who is 31 years of age at the time of decision. The applicant applied for the visa on 13 October 2016 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). 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). 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.

3. The applicant was granted a Subclass 820 Partner (Provisional) visa on 6 July 2017 on the basis of being in a de facto relationship with her sponsor.  The sponsor however advised the Department that the relationship had ended and he wished to withdraw his sponsorship on 1 August 2017.  The applicant was informed of the withdrawal of the sponsorship.  She provided extensive submissions between September and November 2017 acknowledging the end of the relationship and claiming she was the victim of non-judicial family violence.  Given the applicant was no longer in a relationship with her sponsor, she did not satisfy cl 801.221(2) at the time of decision. 

4. The delegate was satisfied nevertheless that the applicant was the de facto partner of her sponsor prior to the relationship breakdown and the claims of family violence.

5. The applicant made a claim to meet the alternative criteria for the grant of the visa, namely the family violence exception. The applicant made a valid claim of non-judicial family violence with the submission to the delegate of a statutory declaration completed by a psychologist, a medical certificate and GP Mental Health Treatment Plan completed by a medical practitioner, and the applicant’s Form 1410 signed statutory declaration

6. As the delegate was not satisfied relevant family violence occurred, the delegate sought the opinion of the Independent Expert on 27 July 2018.  The Independent Expert found the applicant had not suffered relevant family violence as defined in cl 1.21 of the Regulations.  On 27 November 2018, the applicant was informed by the delegate of the Independent Expert’s opinion and invited her to comment or respond.  No response was received.  The delegate noted that as the applicant had not established that she suffered family violence committed by the sponsor, then the applicant was unable to satisfy cl 801.221(4) and (6).

7. The delegate noted that the applicant did not satisfy cl 801.221(2) because she was not at the time of decision the spouse or the de facto partner of the sponsoring partner.  The applicant furthermore did not satisfy any of the other alternative criteria such as the death of the sponsor or the existence of a child of the relationship.  The applicant’s application was subsequently refused by the delegate on 7 January 2019. The applicant applied to the Tribunal for review.     

8. 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.

9. The applicant appeared before the Tribunal on 28 October 2022 to give evidence and present arguments.

10. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

13. At the Tribunal’s hearing, the applicant’s former relationship with her sponsor was discussed in some detail.  On the basis of the evidence both oral and written, the Tribunal is satisfied the applicant and the sponsor were in a partner de facto 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.

14. 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. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: regs 1.23(3), (5), (7), (12), (14).

15. 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?

16. In this case there is no suggestion that there has been court tested evidence. The relevant evidentiary requirements to raise a non-judicial claim of family violence are in reg 1.24. This requires a statutory declaration under reg 1.25, and the type and number of items of evidence specified by the minister (in this case) in instrument IMMI 12/116.

17. 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.

18. The applicant in this case is seeking to rely on evidence referred to in reg1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes.

19. 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).

20. The applicant has provided a Statutory Declaration from herself as required under the legislation. The applicant has also provided a report and statutory declaration from psychologist Patrick Michael McGee; a medical certificate and Mental Health Plan from Dr Ping Nee Lee. These items are both in the form specified, and include the ‘details’ specified under Schedule 1of the instrument.

21. 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.

    Has the applicant suffered family violence?

22. Where the Tribunal is not satisfied that the alleged victim has suffered family violence despite the provision of the requisite evidence, the Tribunal must seek the opinion of an Independent Expert about whether the alleged victim has suffered family violence: reg 1.23(10)(c). The Tribunal must take as correct the opinion of the Independent Expert as to whether the alleged victim has suffered domestic violence: reg 1.23(10)(c), and if the opinion is that the alleged victim has suffered relevant domestic violence, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence for the purposes of the relevant criterion: reg 1.23.

23. The Tribunal considered the oral testimony of the applicant at the hearing of 28 October 2022 concerning her claims to have suffered emotional and mental abuse during her relationship with her former sponsor.  The applicant and her representative also provided an extensive written submission dated 27 October 2022 submitting that the Independent Expert’s opinion of 27 November 2018 was flawed.  The applicant requested the case be referred to a further Independent Expert for reconsideration. 

24. Whilst the Tribunal does not accept that the Independent Expert’s opinion of 27 November 2018 was ‘flawed’ and not correctly arrived at, the Tribunal nevertheless determined to refer the matter to the Independent Expert for a further opinion. Given the Tribunal was undertaking a de novo review, the Tribunal considered it preferable, given it was not satisfied on the evidence before it that non-judicial family violence had occurred, to request a further opinion from the Independent Expert.     

25. On 11 November 2022, the Tribunal requested the opinion of an Independent Expert about whether the alleged victim has suffered family violence. The Tribunal advised the applicant’s agent it had sought that opinion on 14 November 2022.  On 23 November 2022, the applicant provided further submissions and medical evidence for the consideration of the Independent Expert. The Tribunal sent these submissions to the independent expert on 25 November 2022.  The applicant attended an in-person interview with the Independent Expert on 18 January 2023. 

26. On 27 January 2023 the Tribunal received an assessment report from an Independent Expert Dr Emma Collins, in which Dr Collins states:

    In my opinion, relevant family violence that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own personal wellbeing or safety has occurred.

    I am satisfied that the alleged perpetrator’s conduct was actual and was towards the alleged victim.

27. Given the above, the Tribunal must take the Independent Expert’s opinion to be correct that the applicant is taken to have suffered family violence. The Tribunal accepts that the relevant family violence occurred while the relationship between the applicant and the sponsor existed.

28. Further, based on all other evidence, the Tribunal is satisfied that the sponsor, Mr James Stewart (who is an Australian citizen) was the ‘sponsoring partner’ of the applicant.

29. After having regard to all the circumstances of the parties’ relationship as set out in reg 1.09A(3), the Tribunal is satisfied that the parties were in a de facto relationship as defined in s 5CB of the Act.

30. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

    DECISION

31. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cls 801.221(6)(b) and (c)(i)(A) of Schedule 2 to the Regulations

    Justin Owen
    Deputy President

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

    Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)any joint ownership of real estate or other major assets; and

    (ii)any joint liabilities; and

    (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)any joint responsibility for the care and support of children; and

    (ii)the living arrangements of the persons; and

    (iii)any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)whether the persons represent themselves to other people as being in a de facto relationship with each other; and

    (ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)the duration of the relationship; and

    (ii)the length of time during which the persons have lived together; and

    (iii)the degree of companionship and emotional support that the persons draw from each other; and

    (iv)whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).