Kapoor (Migration)

[2021] AATA 3531

Kapoor (Migration) [2021] AATA 3531 (13 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gautam Kapoor

CASE NUMBER:  1931028

DIBP REFERENCE(S):  BCC2017/2269479

MEMBER:Nicholas McGowan

DATE:13 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made 2:14pm on 13 September 2021

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – sponsorship withdrawn – non-judicially determined claim of family violence – evidentiary requirements – no statutory declaration or other required types of evidence provided – no valid claim – anonymous allegation of contrived relationship given no weight – new relationship – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 376

Migration Regulations 1994 (Cth), rr 1.22, 1.23, 1.24, 1.25, Schedule 2, cl 820.221(3)

STATEMENT OF DECISION AND REASONS

1. The applicant applied for a temporary partner Subclass 820 visa on 27 June 2017 on the basis of his claimed relationship with his Australian citizen sponsor.

2. A delegate for the Minister refused to grant the applicant the Subclass 820 visa on 16 October 2019 as his sponsor had withdrawn her sponsorship and the applicant met none of the alternative subclauses under law.

3. The applicant sought review of the delegate’s refusal decision to this Tribunal on 1 November 2019. The Tribunal’s registry constituted the matter to the Member on 24 August 2021. As the Tribunal was unable to make a favourable decision on the information before it alone, the applicant was invited on 25 August 2021 to attend a hearing to present any evidence or argument(s) on 13 September 2021. The applicant attended the hearing. The applicant is represented in this matter. The applicant’s agent did not attend the hearing.

4. The applicant provided the Tribunal with a copy of the delegate’s refusal decision dated 16 October 2019. That decision includes the information that his sponsor had withdrawn her sponsorship of the Subclass 820 visa (as notified in writing by her on 5 August 2019).

5. By way of submission to this Tribunal, dated 5 May 2020, the applicant claimed he had suffered relevant family violence perpetrated by his sponsor. Under the ‘family violence’ provisions an application for a partner visa can continue to be progressed to the grant of a permanent visa should the applicant be able to satisfy the relevant criteria. The applicant has made no claim, and there is no evidence which supports a finding the applicant satisfies any of the other (limited) legal alternatives where a sponsor withdraws sponsorship from a Subclass 820 visa application.

6. Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature.

7. Under r.1.22 a reference to a person having suffered or committed family violence is a reference to a person being taken under r.1.23 to have suffered family violence.

8. Relevantly, the evidentiary requirements to raise a non-judicial claim of family violence are contained within 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. The applicant has not provided a statutory declaration. The applicant has also not provided two ‘Types of Evidence’ as specified under Schedule 1.

9. The Tribunal notes the applicant did provide a psychologist report signed 21 May 2020.

10. Given all the above, the Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the Subclass 820 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa.

11. Further, the Tribunal is not satisfied that a valid claim has been presented in accordance with Division 1.5 of the Regulations. Accordingly, the Tribunal finds that the applicant has not made a valid claim of family violence under the Act.

12. As the applicant’s relationship with his sponsor has ceased and he has not made a valid claim of family violence, the applicant does not meet the requirements of cl.820.221(3) for the grant of the visa. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets any of the alternative criteria.

13. For the reasons above, the Tribunal finds the applicant does not satisfy the criteria for the grant of the visa.

14. For completeness, the Tribunal discussed the presence of a s.376 certificate (including its validity) issued by the Department, and put information formally, to the applicant - as outlined in the information, namely the allegation the applicant had been in a contrived (non-genuine) relationship.

15. The applicant was given the opportunity to comment on or respond to the information consistent with the requirements of the Migration Act and Regulations, including at a later date (as his agent was not present during the hearing).

16. In response (to the above) the applicant told the Tribunal that he began a relationship with another person around April 2019 as he was unhappy in his married relationship with his sponsor. The applicant had told the Tribunal earlier (in the hearing that same day) that his relationship with his sponsor (his wife) has begun to breakdown in April 2019, at which point they lived separately, though it did not cease until the July of the same year (2019).

17. In considering the information covered by the certificate, the Tribunal has determined to place no adverse weight on the allegation itself, as it is made anomalously, and in addition, the information contains little detail in respect to the applicant and his past circumstances.

18. The Tribunal notes no request was made (during its review hearing) for further time to submit/provide any other evidence or arguments. The Tribunal confirmed with the applicant the documents (documentary evidence) he had provided to the Tribunal as part of the review were the totality of the documentary evidence he sought to provide.

    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.