Haikin (Migration)

[2019] AATA 3241

Haikin (Migration) [2019] AATA 3241 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bar Haikin

CASE NUMBER:  1819948

DIBP REFERENCE:  BCC2017/3644646

MEMBER:Rosa Gagliardi

DATE:3 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl.820.221(3) of Schedule 2 to the Regulations.

Statement made on 03 June 2019 at 5:24pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – sponsorship withdrawn – relationship with sponsor ceased – family violence victim – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25, Schedule 2, cls 820.211, 820.221

CASES
Guven v MIMIA [2006] FMCA 311

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 Immigration on 18 June 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 October 2017 on the basis of his relationship with his sponsor, Ms Hannah Rebecca Ginges. At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (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.820.211 and 820.221 which require that at the time of application and decision, 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.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(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The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.211 because the sponsor had withdrawn her sponsorship and there was no evidence that the applicant met any of the alternative provisions in cl.820.211.

5. The applicant appeared before the Tribunal on 8 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, Mr Arie Harkin and from the applicant’s brother, Mr Din Hakin.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, the applicant claims the relationship with Ms Hannah Rebecca Ginges the visa sponsor has ceased, and he has been the victim of family violence.

9. The provisions of cl.820.221 indicate that a genuine partner relationship within the meaning of the Act must have existed before the relationship ceased and the applicant would have otherwise met the criteria in cl.820.221. This means that, while the claims of family violence do not have to cause the cessation of the relationship, the relationship which has ceased must have been one which would otherwise have met the requirements of the relevant legislation.

10. This approach was approved in the case of Guven v MIMIA [2006] FMCA 311 at [22]-[26] where Harnett FM found that when considering the grant of a Subclass 100 Spouse (Residence) visa, it was open to the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a spousal relationship within the meaning of the Regulations and only where it found that such a spousal relationship existed, was it required to make a further finding in relation to claims of domestic violence (as it was then referred to).

11. The Tribunal finds that the circumstances in Guven v MIMIA are similar to the circumstances in the current application before the Tribunal. Although the case in Guven v MIMIA concerned an offshore partner visa application and the present case concerns an onshore partner visa application, the wording in the regulations is similar.  Therefore before assessing whether the applicant has suffered relevant family violence, the Tribunal must assess whether at any point of time the applicant and the sponsoring partner were in a spousal relationship within the meaning of the Regulations, regardless of whether the applicant had been previously granted a Subclass 300 visa.

12. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a) - (d).

13. From the evidence submitted at the hearing from the applicant and members of his family, the Tribunal is satisfied that the relationship was not entered into by either of the parties for the purposes of enabling the applicant to attain a migration outcome.  The Tribunal accepts that the parties entered into the relationship in good faith as two young persons intending a life-long commitment.  The parties both have a Jewish background and this enabled them to form a bond.  Evidence has been submitted that the applicant and the sponsor were in communication with a Rabbi prior to their marriage for pre-wedding classes and that the parties and their parents had been invited to Shabbat dinner with the Rabbi.

14. The evidence submitted at the time of review would also point to relationship having started off as a genuine and continuing one.  Evidence of joint travel has been submitted along with evidence of rent and bond being paid jointly.  A joint bank account has also been submitted wherein the transactions include salaries as well as payment for rent, groceries, and meals consistent with two persons living together as spouses.

15. The Tribunal has also sighted evidence from the couple’s real estate agency demonstrating they were living together from mid-June 2017 to June 2018.  Utility accounts in both names were also submitted to the Tribunal. 

16. Other evidence includes convincing testimony by third parties, some of whom had attended the wedding and then described the deterioration of the marriage.  Photographs have also been submitted of the parties together and with others, including family and friends.  Photographs of the civil wedding have also been sighted by the Tribunal.

17. The Tribunal has considered all the circumstances of the relationship and is satisfied the applicant and the sponsor were in a spousal relationship (as defined) and that this relationship has ceased. 

18. The Tribunal is also satisfied that the claimed family violence occurred within the marriage as required by the Regulations and not only after it had ceased.

19. 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.

20. 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 violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).

21. 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?

22. 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.

23. The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes.

24. 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).

25. The applicant has submitted a statutory declaration signed by him and dated

    
    

    5 April 2019, which conforms to the requirements of r.1.25.  The applicant has:

    ·Set out the allegation of relevant family violence (that is, there must be an allegation of conduct against the relevant persons or their property that causes the alleged victim to reasonably fear for or reasonably be apprehensive about his or her wellbeing or safety); and

    ·Named the person she alleges committed the family violence.

26. The applicant’s statutory declaration refers to the details of the claimed family violence which includes both verbal and emotional abuse, including belittling, stalking and attempts to isolate the applicant from his family with whom he is very close.  The applicant’s declaration of 5 April 2019, also details abuse by the former sponsor’s mother. 

27. A non-judicially determined claim of family violence also requires that in addition to her own statutory declaration, the applicant is required to provide two types of evidence set out under Schedule 1, providing prescribed information.  The current instrument, IMMI12/116 specifies that a minimum of two different types of the following be given:

    ·a medical report, hospital reports, discharge summary or statutory declaration made by a registered medical practitioner or nurse, acting in that capacity;

    ·a report, record of assault, witness statement or statutory declaration made by a police officer;

    ·a witness statement made by someone other than the alleged victim or a police officer during the course of a police investigation;

    ·a report or a statutory declaration by a child welfare authority officer or a child protection authority officer;

    ·a letter or assessment report (on letterhead) from a women’s refuge or a family violence crisis centre;

    ·a statutory declaration made by a member, or person eligible to be a member of the Australian Association of Social Workers who has provided counselling in that role to alleged victim;

    ·a statutory declaration made by the alleged victim’s treating registered psychologist;

    ·a statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website;

    ·a statutory declaration or letter (on letterhead) made by a school counsellor or principal acting in that capacity.

28. In this case the applicant is relying on a report in the form of a statutory declaration by a registered psychologist, Mr Wolfers, dated 5 April 2019.  Mr Wolfers wrote of the applicant, “His recounting over general sessions was consistent with accurate, truthful retelling of genuine traumatic events from the past” which is consistent with the Tribunal’s findings about the applicant’s credibility.

29. Schedule 1 specifies that a psychologist who has treated the applicant is required to state that in their opinion the alleged victim was subject to family violence and to detail the reasons for the opinion.  In addition, the psychologist is required to identify the alleged perpetrator. 

30. Mr Wolfers reports that in making an objective assessment he had used several different instruments and diagnosed that the applicant was suffering from Post-Traumatic Stress Disorder (PTSD).  Mr Wolfers, in addition to identifying the alleged perpetrator, wrote, “I state that in my opinion Mr Bar Haikin has genuinely suffered relevant family violence, which was committed by his wife Hannah Gingis and her mother Susan…”.

31. The Tribunal finds that Mr Wolfers’ statutory declaration meets the requirements set out in Schedule 1 as he has provided his opinion on the basis of objective testing using various psychological testing tools.  Further, as the applicant also consulted Mr Wolfers over a period, and for treatment, (as advised by Mr Wolfers), the Tribunal is also satisfied that the applicant did not solely approach Mr Wolfers for the provision of a report for the purposes of the review.  The Tribunal accepts that the applicant’s consultations were a genuine attempt to deal with his symptoms, including depression and what Mr Wolfers has diagnosed as PTSD. 

32. The applicant is also relying on a statutory declaration by a registered social worker,

    
    

    Ms Jeannine Lew, dated 5 April 2019.  Schedule 1 requires that a social worker (with prescribed characteristics) must state that in their opinion the alleged victim was subject to family violence.  The social worker is also required to detail the reasons for the opinion and to identify the alleged perpetrator.  Accordingly, Ms Lew states, “My clinical assessment is that Mr Haikin was subjected to family violence by Miss Ginges and her family, specifically her mother, during and after his relationship with her”.  Ms Lew’s opinion is based on her observations that the applicant was the victim of psychological and emotional abuse and that he continues to suffer from the trauma he experienced, evidenced by his physical and emotional symptoms.

33. The Tribunal notes that Ms Lew specifies that the applicant had presented to her for counselling on several occasions.

34. The Tribunal notes that the applicant has also been prescribed medication by his general practitioner to assist deal with depression.

35. Therefore, the evidence presented meets the requirements of r.1.24. As such, a non-judicially determined claim of family violence has been made under r.1.23.

    Has the applicant suffered family violence?

36. Having considered all of the evidence before it, the Tribunal is satisfied, for the purposes of r.1.23, that the applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship. As such, the applicant is taken to have suffered family violence in the relevant sense: r.1.22.

37. 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.820.221(3).  Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

38. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl.820.221(3) of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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.