Jaafouri (Migration)

Jaafouri (Migration) [2024] AATA 4036 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Aiman Jaafouri
REPRESENTATIVE:  Dr Talat Abouzaid (MARN: 0323653)
CASE NUMBER:  2018534
HOME AFFAIRS REFERENCE(S):          BCC2016/2499373
MEMBER:Donna Petrovich
DATE:9 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

Statement made on 09 October 2024 at 3:13pm
CATCHWORDS
MIGRATION –Partner (Migrant) (Class BC) visa – Subclass 100 – relationship breakdown – family violence – in the Independent Experts opinion the relevant family violence has not occurred – applicant is not taken to have suffered family violence committed by the sponsor for reg 1.22 – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 100.221

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 December 2020 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 28 July 2016 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 (Cth) (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. 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) and (c)(i) and, in relation to a decision to grant or not to grant the visa made on or after 20 August 2022, cl 100.221(4C)(b) and (c). The applicant claims this occurred in this case.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 100.221 because that on the basis of a Non-Judicial family violence claim the Minister was not satisfied that relevant family violence occurred. The applicant was referred by the Department of Immigration and Border Protection to an Independent Expert for consideration on 17 January 2020, who found that the applicant had not suffered relevant family violence.
The applicant appeared before the Tribunal on 13 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Hassan Ali (witness), Samir Hassan (witness).
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with the sponsor has ceased, and he has been the victim of family violence.
The applicant is a 48 year old Syrian National, who was married to his sponsor Ms Fidaa Ahmad who is 47 years old and an Australian citizen of Syrian heritage. The applicant was introduced to the sponsor by a friend while he was visiting Australia in February 2016. The applicant returned to Syria, and they maintained contact, and were married on 25 May 2016, and lived together for 7 months in Syria.
The sponsor wanted to live in Australia, and the applicant relocated to live with her after she applied for a Partner visa in early 2017. The sponsor returned to Australia in early 2017 and the applicant arrived in Australia on 2 March 2017.
The sponsor Ms Ahmed had been previously married, and her former husband had since passed away. The applicant and sponsor lived in a granny flat on a property owned by the sponsor’s stepson for seven months, prior to the sponsor purchasing a house in her own name.
The sponsor inherited $200,000-$250,000 from her former husband’s estate, which she used as a deposit on a house that she purchased 4 or 5 months after the applicant arrived in Australia.
The applicant obtained a job in the concrete industry with the assistance of the sponsor, where he earned approximately $5000 per month, which he gave to the sponsor, and this was used to pay the mortgage and living expenses of the couple. The applicant indicated he was complicit in handing over the majority of his wage to his wife for payment of the house. The sponsor was not employed, and the applicant was supporting his wife at this time. The applicant also continued to send $100 per month to his family in Syria.
When the applicant discovered that his name was not included on the deed for the property, he engaged a lawyer and placed a caveat on the house to enable some claim on the house. The applicant lost his job and was unable to pay his lawyer, therefore, the matter did not proceed any further.
In evidence provided during the applicant’s initial Independent Expert report, the applicant gave evidence that he was aware that his name was not included on the deed initially, and for some time before consulting a lawyer and placing a caveat on the property in early November 2018, as evidenced in a Statutory Declaration provided by the applicant.
The applicant claims coercive control in relation to finances, and that he was verbally abused, and that the sponsor would make threats to kill him, that she would harm herself and tell the police that he had injured her. The sponsor allegedly also requested he sleep in the granny flat, and that she would tell others that he was “not a real man”. There were no noted comments in relations to the sponsor’s self-harm in the applicant’s Statutory Declaration.
The applicant took the threats of violence against him seriously, as the sponsor’s former husband was allegedly a drug dealer, and that these threats scared him.
The sponsor had made a series of requests that the applicant leave the home, and the applicant claimed that she was mistreating him by not preparing food for him, and telling him to sleep in the granny flat. In his Statutory Declaration the applicant indicated on the last occasion that he had sought assistance from a friend, who helped him find accommodation in a share house.
The applicant claimed that when they were first married and while living in Syria the couple had maintained a good relationship, and that when they moved in together the relationship had deteriorated. The sponsor had asked him to leave for the first time 6 or 7 months after he arrived in Australia. The last time he was asked to leave was in the second half of 2018.
The applicant had also made claims of physical abuse, he indicated that she had not physically assaulted him, except that she had pushed him during an altercation, and had called the police on him, claiming that he had assaulted her. He denied this and said he knew that this was not acceptable in Australia.
The applicant claims that he now had difficulty with recall and his memory was not good. Since the conclusion of the relationship the applicant has not worked and had sought assistance from his GP, and subsequently been referred to a psychologist as a result of his poor mental health.
At a memorial service, there was noted an altercation between the applicant and the stepson of the sponsor in relation to the caveat placed on the property. Allegedly there were threats made against the applicant by the stepson.
The relationship between the applicant and sponsor ended in August 2018, and it was indicated by the applicant that the matter was not reported to police until 11 November 2018. The Police did not act on the matter as there was no physical assault and no further or recent threats. The police suggested that he apply for an Apprehended Violence Order with the assistance of a Solicitor.
The applicant appeared at the Tribunal on the 13 March 2024, where the claim of family violence was discussed. The matter was then referred to an Independent Expert and the claims of family violence were further examined. The Independent Expert wrote: “although what the applicant has claimed has largely remained the same, namely financial, verbal, emotional and physical abuse and threats, there are concerns in his reporting of the severity of these incidents, as well as the timing of them”.
The Independent Expert also made reference to the previous Independent Expert’s report (2020), that “did not find that Mr Jaafouri had suffered relevant family violence”. The previous Independent Expert had noted difficulty in gaining context of the alleged abuse. However, three major issues were noted, namely the purchase of the house, the couple attempting to have a child without success, even after attempting IVF in Australia, and their financial situation.
The Tribunal assessed many of the same issues during the hearing, and also had concerns regarding the reporting of the severity of the incidents, and the applicant’s lack of recall of timeframes in relation to the incidents expressed at the hearing. The Tribunal found that there were inconsistencies in the evidence provided and found it difficult to assess the evidence given during the hearing as a result.
The Tribunal in reviewing the evidence of the Independent Expert accepts that the applicant’s account of his circumstances was more indicative of the uncomfortable nature of a relationship which had become untenable and a relationship which was not working, and which has resulted in the marriage breaking down. The most recent Independent Expert’s report highlights the previous assessment by the initial Independent Expert instigated by the Department of Immigration and Border Protection report, that made an assessment that the purchase of the property by the sponsor, the applicant’s inability to be listed on the title, and the applicant taking a caveat on the property prior to the applicant leaving the relationship had led to many of the incidents reported by the applicant between the applicant and sponsor and the applicant and sponsor’s step-son.
The Tribunal in considering all of the evidence finds that the applicant had suffered distress as a result of the relationship failing and had needed additional support with his mental health as a result of his marriage break down, but that this is not unusual at the conclusion of a marriage.
The Tribunal accepts that the applicant having been assessed by an Independent Expert and their finding that “overall in their opinion that Ms Ahmed alleged abusive behaviour did not cause Mr Jaafouri to reasonably fear for, or to be reasonably apprehensive about his own wellbeing or safety. Rather, on the evidence presented to (me), I formed the opinion that the experiences as described by Mr Jaafouri were representative of marital discord, and a stress response to some of the couple’s difficulties.” Therefore, in the Independent Experts opinion the relevant family violence has not occurred and was neither actual nor threatened.
The Tribunal is satisfied that a spousal/de facto relationship existed at the time of visa application.
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.
Under reg 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 reg 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: reg 1.23(3), (5), (7), (12), (14).
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?
Under reg 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 reg 1.24 is provided.
The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes.
A statutory declaration under reg 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: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).
The applicant made a non-judicial claim and provided documentation. However, the submissions made by the applicant during the hearing were difficult to assess due to inconsistencies in timeframes and lack of detail and consistency in other evidence submitted to the Tribunal referred the matter to be assessed by an Independent Expert.
·     Previous Independent Expert Report dated 14 March 2020
·     The applicant’s end of acknowledgement dated 14 March 2020
·     The Psychologist report Sara Zaarow dated 28 November 2018
·     GP report by Dr Emil Guirguis dated 30 November 2018
·     Statutory Declaration Mr Jaafouri previous Statutory Declaration 2018
·     Marriage Certificate 26 June 2019
·     Statutory Declaration by the Applicant dated16 April 2020
Therefore, the evidence presented does meet the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has been made under reg 1.23.
Has the applicant suffered family violence?
The Independent Expert provided an extensive report after assessing Mr Jaafouri during the interview. The Independent Expert found that in relation to emotional abuse, verbal abuse and threats that the nature of the conduct did not satisfy the requirements and were neither or actual in relation to the alleged victim.
The applicant, Mr Jaafouri, alleged that he frequently experienced verbal and emotional abuse, as perpetrated by the sponsor, Ms Ahmed between March 2017 and the ending of the relationship in 2018. These included being called derogatory names and being asked to sleep outside the couple’s bedroom, including in the granny flat, telling others he was not a man, and included complaining to a clergyman about him. The applicant also claimed that the sponsor had made threats to send people to hurt him along with threatening to hurt herself and call the police and tell them that he had harmed her when she had harmed herself.
The applicant found it difficult to provide context to these claims, and when and why they had occurred. The Independent expert noted that there was disparity between the current interview and the interview with the previous Independent Expert, as he had previously indicated that these threats had been made largely as a response to the taking out of a caveat on the property Mrs Ahmet had purchased.
He then amended this and stated to the previous Independent Expert that the threats were commenced about four months after he arrived in Australia. In the interview with the current Independent Expert he stated that the threats commenced 7 or 8 months after his arrival in Australia. The Independent Expert found that it was difficult to obtain a clear timeline from Mr Jaafouri, as he blamed his memory difficulties.
The Independent Expert stated that this caused concern regarding the applicant’s claims. There are other instances of inconsistencies noted by the Independent Expert in relation to statements made about fear relating to the threats made from the sponsor’s stepson, of the threats of violence and the reasons why the applicant left the house.
In the interview with the Independent Expert the applicant stated that he left the home as he could no longer tolerate the stress and acrimony in their relationship. However, later in the interview he stated that he had been fearful of the threats Ms Ahmed had been making, and this was the reason he left. The Independent Expert stated that the applicant’s inconsistent account caused the Independent Expert to have concerns regarding his credibility.
Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of reg 1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an Independent Expert. On 28 June 2024 the Independent Expert provided an opinion that the applicant had not suffered relevant family violence. The Independent Expert stated that overall, in their opinion MS Ahmed’s alleged emotional and verbal abuse did not cause Mr Jaafouri to reasonably fear for or be apprehensive about his own wellbeing or safety.
Rather, on the evidence presented, the Independent Expert had formed the opinion that the experiences, as described by the applicant, were representative of marital discord and stress in response to some of the couple’s difficulties. There are also concerns regarding the applicant’s claims and the timing of these, as it appears that he has likely amended these to ensure that these occurred in the relationship in order to substantiate his claim of relevant family violence.
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 reg 1.23 the Tribunal is required to take as correct an Independent Expert’s opinion, properly made.
Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for reg 1.22.
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) or cl 100.221(4C)(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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.
Donna Petrovich
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.

[2024] AATA 4036

9 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction