Haynes (Migration)

[2019] AATA 473

Haynes (Migration) [2019] AATA 473 (11 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rodrick Haynes

CASE NUMBER:  1732961

DIBP REFERENCE(S):  BCC2016/2191317 BCC2017/2361049

MEMBER:Justin Owen

DATE:11 February 2019

PLACE OF DECISION:  Perth

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:

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

Statement made on 11 February 2019 at 4:41pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – relationship ceased – victim of family violence – non-judicially determined claim – credible witness ­– decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 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 Immigration on 6 December 2017 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 24 June 2016 on the basis of his relationship with his 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 (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 delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the applicant did not because the applicant was not at the time of decision the spouse or the de facto partner of the sponsoring partner and he did not satisfy any of the alternative criteria such as the death of the sponsor, any incidence of family violence or the existence of a child of the relationship. The Tribunal notes that the delegate made her decision refusing the application (noting a failure by the applicant to provide any information pertaining to the exceptions) at almost the same time the applicant through his representative actually made extensive submissions to the delegate.  Given the delegate’s decision not to reopen the matter to consider these submissions, the applicant applied to the Tribunal for review. 

4. 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)(A). The applicant claims this occurred in this case.

5. The applicant appeared before the Tribunal on 8 February 2019 to give evidence and present arguments.

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

7. At the hearing the Tribunal noted that an s375A certificate had been placed on the file on the purported basis that disclosure of the material would be contrary to the public interest because it would endanger the life or physical safety of a person and it would reveal confidential departmental investigative methods used to detect breaches of the law.  The Tribunal determined the certificate was invalid.  The Tribunal noted the folios were simply the sponsor informing the Department that her relationship with the sponsor had ended (which had already been put to the applicant in writing under s359A on 26 April 2018) and an internal Department file note relating to the applicant’s representative’s previous query to the Department as to the process and circumstances when it would be appropriate to vacate a delegate’s decision.  The applicant did not make any submissions on the matter.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner 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.

11. 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. 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).

12. 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?

13. 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 r.1.24. This requires a statutory declaration under r.1.25, and the type and number of items of evidence specified by the minister (in this case) in instrument IMMI 12/116.

14. 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.

15. 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.

16. 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).

17. The applicant has provided an extensive Statutory Declaration from himself as required under the legislation (T1, folios 128 to 139). The applicant has also provided a report and statutory declaration from clinical social worker Mr Owen Robinson (D2, Folio.201-202); a statutory declaration from registered psychologist Mr Christian Hetebry (T1, Folio.121-122) and correspondence from Dr Joe Kosterich (T1, Folio.127). These items of Mr Robinson and Mr Hetebry are both in the form specified, and include the ‘details’ specified under Schedule 1of the instrument.

18. 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?

19. The applicant appeared before the Tribunal.  The Tribunal found his oral testimony to be candid, spontaneous, consistent and therefore credible.  The Tribunal has also had consideration to the considerable written submissions and evidence the applicant made to both the delegate and the Tribunal.   

20. 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.

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.

22. 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

23. 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:

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

    Justin Owen
    Senior Member