Harris (Migration)

[2021] AATA 904

Harris (Migration) [2021] AATA 904 (8 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ivan Troy Harris

CASE NUMBER:  1934137

DIBP REFERENCE(S):  BCC2017/2748627

MEMBER:Kira Raif

DATE:8 January 2021

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 visa:

·cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations

Statement made on 08 January 2021 at 4:56pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – applicant was no longer in a spousal relationship with the sponsor–victim of family violence – independent expert’s opinion – family violence incidents occurred during the relationship – decision under review remitted

LEGISLATION
Migration Act 1958, s 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 Immigration on 28 November 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 August 2017 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.801.221 because the relationship between the applicant and the sponsor ended and the delegate was not satisfied the applicant suffered family violence. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 2 November 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. 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

5. At the time the application was made, 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 (the Regulations).

6. 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.

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

8. The applicant provided with the application a number of documents evidencing his relationship with the sponsor, including statements from third parties, evidence of joint social activities and of sharing of resources, as well as evidence of having established a joint household. On balance, the Tribunal is satisfied, as was the delegate, that the applicant and the sponsor were in a genuine relationship before that 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.

9. 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).

10. 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?

11. 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.

12. 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.

13. 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).

14. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the temporary visa in November 2018. In June 2019 the sponsor informed the Department that the relationship had broken down. The delegate wrote to the applicant seeking his comments on that information. In response, the applicant claimed in July 2019 that he had suffered family violence. The applicant provided a number of third party statements and other evidence, a medical report from his GP and a mental health plan, a statement from a psychotherapist Ms Godfrey and a statement from a psychologist Mr Watson-Munro. The delegate noted that Mr Watson-Munro did not express an opinion that the applicant had suffered family violence.

15. The applicant provided additional evidence to the Tribunal. These include a number of statements not from prescribed persons which cannot be relied upon to raise the statutory claim of family violence. The applicant provided a statutory declaration from Mr Watson-Munro. In that declaration, Mr Watson-Munro states that the applicant suffered family violence and provides reasons for that opinion. The applicant subsequently provided evidence of his medical prescription and a statement from a doctor.

16. 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?

17. In oral evidence to the Tribunal, the applicant referred to the nature of the relationship and the mental abuse he claims to have suffered. The applicant referred to the sponsor being controlling and manipulative. The applicant referred to physical harm, screaming and other demands by the sponsor. The applicant referred to mental and physical abuse and states that as a result, he has been receiving treatment. The applicant said that his partner used the visa to threaten him and take control of him. The applicant states that the way the sponsor acted was threatening and he felt fearful for his safety and well-being but he did not mention these matters to the police or any health professionals as he felt ashamed.

18. 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 particular, the Tribunal is concerned that the claim of family was only made in response to the sponsor informing the delegate that the relationship had ended. In accordance with r. 1.23, the Tribunal sought the opinion of an independent expert. On 8 January 2021 the independent expert provided an opinion that the applicant had suffered relevant family violence.

19. 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.

20. Where the independent expert’s opinion is that a person has suffered relevant family violence, at least part of the violence that led to that opinion must have occurred while the married or de facto relationship existed. The applicant’s evidence is that his relationship with the sponsor started in mid-2016 and lasted until 2019. The Independent Expert formed the view that the family violence incidents occurred during that period and thus 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

21. 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.801.221(6)(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

22. 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 visa:

    ·cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member