Huseng (Migration)

[2018] AATA 1907

Huseng (Migration) [2018] AATA 1907 (3 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jemy Huseng

CASE NUMBER:  1700339

DIBP REFERENCE(S):  BCC2015/2635654

MEMBER:Linda Holub

DATE:3 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 03 April 2018 at 9:38am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 – Insufficient evidence of relationship – Family violence claim not properly made – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, rr 1.23, 1.24, Schedule 2, cl 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1) This is an application for review of a decision of a delegate of the Minister for Immigration on 22 December 2016 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 10 September 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary). 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 decision, the gap is to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and the 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 820.22193)(a) and (3)(b)(i). The applicant claims this occurred in his case.

4) The. Delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because delegate was not satisfied that the evidence and information provided was sufficient to demonstrate that the applicant was the spouse of defacto partner of the sponsor.

5)    The applicant appeared before the Tribunal on 27 February 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7) In the present case, the applicant claims his defacto relationship with the sponsor has ceased and he has been the victim of family violence. Under r1.23 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 suffered relevant family violence. The relevant Regulations are included as an Attachment to this decision. The violence, or part of the violence during the relationship: r.123 (3) (5), (7), 12), (14). The applicant claimed that the violence he was subjected to occurred during their defacto relationship.

8)    For visa applications made one or after 9 November 2009, the Regulations explicitly require family violence to have occurred when the de facto relationship was still in existence. The defacto relationship must therefore have existed before it can be determined that it has ceased.  If the Tribunal is not satisfied that a de facto relationship existed, the family violence exception to the continuing relationship requirement will not be available: r.123(3), (5), (7) (12) and (14).

9)    Therefore the issues in the present case concern whether the applicant was in a de facto relationship with the sponsor at the time of the visa application, and whether he may avail himself of the ‘family violence exception’ to the requirement to have maintained the de facto relationship at the time of decision.

Whether the parties are in a spouse or de facto relationship

10) Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen.

11) Having considered the available evidence, the Tribunal is prepared to accept that the applicant was in a de facto relationship with the sponsor at the time of the visa application.  Accordingly, the Tribunal must determine whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

Evidence at the review hearing

12) At hearing the applicant was asked about the whereabouts of his sponsor. He stated that he will not be attending because the sponsor no longer wishes to support the application. The Tribunal asked the applicant about the status of their relationship. After some discussion the applicant informed the Tribunal they were no longer in a relationship.   The Tribunal explained that the visa type requires an applicant to have a sponsor except in certain circumstances.

13) The applicant stated that the relationship is not good anymore and that he had been subjected to domestic violence had been threatened and his sponsor was taking drugs. The Tribunal asked if these incidents had been reported to police. The applicant stated they had not because he was frightened and still loves the sponsor.   The Tribunal asked the applicant if he had made reports to any other authority or to anyone else.  He stated that he did not see a doctor, but did talk to a friend. 

14) The Tribunal explained that claims of domestic or family violence within the relationship that he wanted considered needed to be supported by either judicially determined or non-judicial evidence. The Tribunal explained briefly what this meant.

15) The applicant then stated that he once went to hospital following an incident.  The Tribunal asked why the applicant had previously stated that he had not reported the violence to a doctor. The applicant did not respond to the question but stated that an incident occurred in 2016. He stated the people who helped him write the application advised that he should not refer to the incident in 2017.  Despite attempts to understand the timing and circumstances of why the applicant was advised not to refer to particular incidents, the applicant's evidence was rambling and confusing.

16) The Tribunal offered the applicant an opportunity to submit any written evidence that he was able to obtain from his attendance at a hospital.

17) At hearing, the applicant provided the Tribunal with a CNN news article about the authorities being emboldened in Indonesia by the rise of Islamic conservatives[1]. The Tribunal asked the applicant what the relevance of the material is to his application for a Partner visa. He responded that he did not how to explain. The Tribunal asked him if it had some relevance to his personal situation.  He responded that it did.  The Tribunal explained to the applicant that it was not relevant material in relation to his particular application type but that he may wish to seek further legal advice regarding the appropriate visa type in his circumstances.

[1] AAT file, folios 32-47.

18) Following the hearing the Tribunal wrote to the applicant and provided further information about the evidentiary requirements in relation to claims of family violence. The letter stated that any further information should be received by 13 March 2018.

Has a claim of family violence been made under the Regulations?

19) The applicant subsequently provided the Tribunal:

a.A letter from a friend who was also a supporting witness for the Partner visa application dated 12 March 2018[2].

[2] AAT file, folio 62, page 2.

This letter does not meet any of the evidentiary requirements detailed in Division 1.5 of the Migration Regulations.

b.A letter from a counsellor with the NSW Health South Eastern Local District Health District dated 5 March 2018[3] . The letter advises that the Kirketon Road Centre is a primary health facility in Kings Cross which is involved in the prevention, treatment and care of HIV/AIDS and other transmissible infections among vulnerable population groups.  It states that the applicant first attended the Centre in September 2012 and since then has attended regularly for medical care and treatment.   It goes on to state:

[3] AAT file, folio, 61.

“Today Ms Huseng has requested that I review the notes in her Medical Record so as to outline those matters which reflected her concerns relating to her then male partner with whom she had been in a de facto relationship since 2013.  In late 2015, Ms Huseng had reported that her then partner regularly smoked methamphetamine (predominantly ‘ice’) and that she was particularly distrusting of him, reporting that he had other sexual partners and that she was anxious about the possibility of sexually transmitted infections.  She did report at the time that he had haematuria.

Ms Huseng has mentioned to me today that she has reports from the local Police that reflect a history of violence toward her from her ex-partner.  She will present these documents to you in support of her claim of domestic violence, the fear this has provoked, and her social phobias which resulted from her ex-partner’s violence towards her.  She also reports his abuse of a domestic animal, their dog, during this period.  She believes he practiced psychologically crippling cruelty towards her resulting in a debilitating lack of confidence.  As a transgender woman, this experience of abuse has been significantly traumatizing and her fears relating to her current situation carry a level of dread previously unknown to her.

At this point in time, Ms Huseng reports a deep sense of damage to her: physically, emotionally and psychologically. She has requested ongoing therapeutic counselling which the KRC Counselling Unit can provide and we are most supportive of her to take this initiative”[4].

[4] AAT file, folio 61.

The Tribunal has considered the submission and assessed against it against the evidentiary requirements of Division 1.5 of the Migration Regulations. The letter was not in a format of a Statutory Declaration and there is no indication that the Counsellor who wrote the report is a member or eligible to be a member of the Australian Association of Social Workers or that she is registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist.

c.Email correspondence between the applicant and NSW Police in which the applicant has sought reports of incidents reported in either October- December 2015.

The emails do not meet any of the evidentiary requirements detailed in Division 1.5 of the Migration Regulations.

d.A copy of a receipt from NSW Police acknowledging an application had been submitted by the applicant under the Government Information (Public Access) Act 2009.

The receipt does not meet any of the evidentiary requirements detailed in Division 1.5 of the Migration Regulations.

20) The Tribunal notes that the applicant did not inform the Department that he is no longer in a relationship with the sponsor.  The Tribunal is satisfied that the applicant has been provided with a reasonable opportunity to provide evidence in support of his claim that he has suffered family violence during his relationship with the sponsor and that information was provided to him about the form in which that evidence must be provided. 

21) The Tribunal is satisfied that the applicant's submissions are not made by the prescribed persons or in the prescribed format and therefore do not meet the requirements in r.1.24 and instrument IMMI 12/116. Consequently, the non-judicially determined claim of family violence has not been properly made and cannot be considered.

22) On the basis of the above the Tribunal is not satisfied that the applicant meets the requirements of cl.820.221(3) 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.

DECISION

23) The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Linda Holub
Member

ATTACHMENT - Extract from 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