Heng (Migration)

[2020] AATA 6200

Heng (Migration) [2020] AATA 6200 (23 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Visal Heng
Miss Maly Heng
Master Bunsong Heng

CASE NUMBER:  1815949

DIBP REFERENCE(S):  OSF2014/051282 OSF2014051282

MEMBER:Ann Duffield

DATE:23 June 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Migrant) (Class BC) visas.

Statement made on 23 June 2020 at 5.05pm

CATCHWORDS
MIGRATION –Partner (Migrant) (Class BC) visa – Subclass 100– relationship ceased – family violence claims – applicant did not meet the evidentiary requirements to support a claim of domestic violence– claim of family violence has not been established –credibility concerns –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.21, 1.23, 1.24, 1.25, Schedule 2, cl 100.221

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 May 2018 to refuse to grant the applicants Partner (Migrant) (Class BC) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 10 June 2014 on the basis of his relationship with his sponsor. At that time, 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).

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.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.

4. The delegate refused to grant the visas on the basis that the applicant did not meet cl.100.221 because the applicant was no longer the spouse of the sponsor and did not meet the evidentiary requirements to support a claim of domestic violence made by the applicant against the sponsor.

5. The primary applicant appeared before the Tribunal on 4 June 2020 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   BACKGROUND

8. The parties provided the Tribunal with a copy of the delegate’s decision along with the application for review. The Primary applicant is a citizen of Cambodia born on 30 June 1983. The secondary applicants, also citizens of Cambodia, are his two children born in December 2006 (13 years old) and January 2009 (10 years old).

9. The applicant travelled to Australia on 7 June 2015 on a subclass 309 visa as the spouse of his Australian citizen wife. He has departed Australia on one occasion since that time on 16 December 2019 arriving back in Australia on 28 January 2020.

10. The secondary applicants have also departed Australia. His younger son departed on 18 March 2016 and has not returned.

11. The applicant’s daughter departed on 12 November 2016 returning on 6 January 2017 and again from 16 December 2019 to 28 January 2020.

12. The applicant’s sponsor formally advised the department on 25 September 2017 that she wished to withdraw the sponsorship as the relationship had broken down. The applicant was given several opportunities to respond to the department’s request for information, but he provided no further information before the decision was finalised on 28 May 2018.

13. The Tribunal wrote to the applicant on 15 April 2020 seeking his response to information that he and his sponsor were no longer in a spousal relationship and further evidence in relation to any exemptions which may apply to his circumstances, including family violence. The applicant sought several extensions which were granted. The applicant provided the Tribunal with a number of documents including the following:

    a.A report dated 16 March 2020 from Progression Psychology Services, Mr Derek P Amenkowicz. Mr Amenkowicz has not provided any details regarding his registration as a practitioner or membership of any relevant organisation. This report does not name the perpetrator of the alleged family violence.

    b.A completed and signed Form 1410 from the applicant

    c.Two statutory declarations from friends. These statements do not identify the perpetrator of the alleged family violence, and are in any case, not provided by competent persons.

    d.A letter from Dr Dissanayake stating that he has seen the applicant many times and he has referred the applicant to a clinical psychologist for counselling. The Doctor states that the applicant has suffered adjustment disorder due to domestic violence from his partner. This statement does not name the perpetrator of the alleged family violence or detail the alleged violence.

    e.A letter from the applicant stating that he and the sponsor were in a genuine relationship prior to the alleged family violence.

    f.School reports and contract for the purchase of a car

14. The applicant’s letter to the Tribunal dated 23 May 2020 makes the following claims:

    a.He and the sponsor were in a genuine relationship. He and his children stayed with her at her house in Perth from 7 June 2015 to 10 July 2017. After that date they moved to another house together and lived there until February 2018.

    b.The sponsor sent the applicant’s son back to Cambodia against his (the applicant’s) wishes and he (the applicant’s son) remains in Cambodia.

    c.The sponsor took his daughter to Cambodia in November 2016 but failed to bring her back necessitating the applicant to ask his aunt to bring her back in January 2017.

    d.The applicant alleges the sponsor abused him financially but not including his name on their property and new car. He alleges she wants to control his bank account, know all the money that he spends and the people him communicates with. The sponsor held his and his children’s passports and personal documents.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

16. For the purposes of this decision, the Tribunal accepts that 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.

17. 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).

18. 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?

19. 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.

20. 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.

21. 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).

22. The applicant’s claims of domestic or family violence relate to financial abuse, emotional abuse and physical abuse in relation to himself and his children.

23. The applicant’s statutory declaration also mentions the alleged abduction of his children however he has provided no evidence that the sponsor abducted his children or took them anywhere without his consent. In any case, that would be a matter for authorities other than the immigration department. He has talked about having a good relationship with the sponsor, where financial arrangements, housekeeping duties and looking after children were shared activities until February 2018. He indicates that the sponsor smacked his children, was overly strict with them and emotionally and physically abusive towards his children however apart from an incident where the sponsor allegedly smacked his daughter on her legs with a wooden stick, he has detailed no other incidents of abuse. He did not report this abuse at the time.

24. The Tribunal has also considered the report provided by the applicant’s psychologist. This report does not include any details of his registration as a psychologist or the registration of his practice. The report itself does not identify the alleged perpetrator. The report does not detail any violence towards the applicant’s children that amounts to abuse (the sending back of his children to Cambodia without his consent is unsupported by any evidence). In any case the report does not name the children.  It does not therefore reach the threshold requirements for satisfactory evidence. The Tribunal put this to the applicant during the hearing and the applicant undertook to have the evidence amended to include the relevant material. The Tribunal allowed the applicant additional time to provide whatever evidence he considered necessary after the hearing. The Tribunal put to the applicant however that it would consider what weight it could give a document provided by someone who had been directed to include certain information.

25. After the hearing the applicant provided an amended report from Mr Amenkowicz which fulfils the requirements of the legislation. It appears that the applicant has seen Mr Amenkowicz in a clinical capacity on numerous occasions since May 2019. The Tribunal notes that these appointments come almost two years after the alleged violence and a full year after the delegate’s decision to refuse the visa.

26. Mr Amenkowics names the perpetrator and states in his opinion that the applicant has suffered domestic violence and details incidents of that violence. This statement appears to meet the statutory requirements.

27. There is a statement by the applicant’s Doctor Dissanayake  but again, it does not mention the alleged perpetrators name nor detail the incidents of alleged abuse. The applicant also provided an amended letter from Dr Dissanayake dated 5 June 2020. In this letter Dr Dissanayake names the perpetrator but considers the separation of the applicant’s children by the sponsor from the applicant as evidence of family violence. He gives no details of any other alleged violence except to simply state that the applicant has suffered financial, emotional and physical abuse.  This statement does not meet the evidentiary requirements.

28. The applicant has also provided statements by two friends, however they do not meet the threshold requirements of the types of competent persons who can make the required statements. The statements do not identify the alleged perpetrator or victims of the alleged violence.

29. One of these friends provided an additional statement after the hearing commenting on the quietness of the interpreter and some confusion around the lack of interpretation of the word “kidnap” in relation to the applicant’s son and daughter.  The statement notes that the applicant did not report the fact that the sponsor removed the children from Cambodia without his permission arguing that it was not a “kidnap” as the Tribunal suggested (although its hard to see what else it can be properly termed) but that the applicant’s son was only “separated” from the applicant which is not a police matter. In any case, these statements do not meet the evidentiary requirements.

30. The Tribunal has considered these matters, particularly in relation to the matter of the interpreter and notes that neither the applicant nor his adviser raised these concerns at the time or subsequently.

31. The Tribunal does not find the applicant to have been a witness of truth, particularly in relation to this alleged “separation” of himself from his children by the sponsor. In the Tribunal’s mind there is insufficient evidence, in the first instance to determine whether or not the children were, in fact taken without the applicant’s permission or if they were, why it was not reported to the police. The applicant told the Tribunal that he gave the sponsor permission to take the children out of the country on the basis that they be returned. The applicant’s daughter has returned; however his son remains in Cambodia. In the Tribunal’s mind this amounts to kidnapping. The applicant himself told the Tribunal that he had not returned to Cambodia to attempt to bring his son home (noting that the child’s visa had expired). The applicant’s insistence that they were not kidnapped, merely “separated” from him without his permission is a poor excuse to explain why he has not reported the matter to the police and to cover what is clearly an untruthful statement of the circumstances of the children.

32. Therefore, the evidence presented does not meet the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23.

    CONCLUSION

33. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.100.221(4)(b) and (c) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

34. The Tribunal affirms the decision not to grant the applicants Partner (Migrant) (Class BC) visas.

    Ann Duffield
    Senior 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.