Le (Migration)

Le (Migration) [2024] AATA 2614 (29 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Phuong Chi Le
REPRESENTATIVE:  Mr Vinh Quang Duong
CASE NUMBER:  2304423
HOME AFFAIRS REFERENCE(S):          CLF2015/28299
MEMBER:Deputy President Justin Owen
DATE:29 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa

Statement made on 29 May 2024 at 10:52am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – two Federal Circuit and Family Court remittals – relationship ceased and non-judicially determined claim of family violence – no specified statutory declaration provided – practitioners’ supporting reports and statements do not alleviate requirement – applicant on notice of requirements – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 376
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24(b), 1.25, Schedule 2, cl 801.221(1), (2), (6)(b), (c)(i)
CASES
Doan v MICMSMA [2022] FedCFamC2G 405
MIAC v Pham [2008] FCA 320

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 Immigration and Border Protection on 7 July 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 18 September 2012 on the basis of her relationship with her sponsor, Mr Minh Duc Tran. At that time, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 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 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). 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 801.221 because the delegate was not satisfied that the applicant was the spouse or de facto partner of their sponsor (as defined under sections 5F and 5CB of the Act).
The applicant subsequently sought review of the delegate’s decision at the Tribunal. On 15 July 2016 the Tribunal affirmed the delegate’s refusal. The applicant appealed the Tribunal decision to the Federal Circuit Court. On 27 June 2017 the Federal Circuit Court remitted the matter by consent.
The matter returned to a differently constituted Tribunal. On 1 June 2018 and 5 November 2018 the applicant appeared before the differently constituted Tribunal to give evidence and present arguments. On 14 December 2018 the differently constituted Tribunal affirmed the delegate’s refusal. The applicant appealed the Tribunal’s decision to the Federal Circuit Court. On 24 February 2023 the Federal Circuit and Family Court remitted the matter by consent. The matter has returned to a differently constituted Tribunal for review.
The applicant appeared before the Tribunal on 15 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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 she has been the victim of family violence.
The Tribunal has considered the significant amount of evidence that has been previously presented to differently constituted Tribunals and the delegate in relation to the purported former spousal relationship. The Tribunal notes that at the differently constituted Tribunals in 2016 and 2018, the applicant at that time was claiming to be in an ongoing spousal relationship with the sponsor. She states that she separated from the sponsor in early 2019 and was officially divorced in 2020. The applicant stated she was in a relationship with the sponsor for over seven years.
The Tribunal notes the considerable corroborative evidence supporting the claim the parties were in a genuine spousal relationship, as well as the previous adverse information put to the applicant by differently constituted Tribunals. The applicant presented further supporting documents and declarations from individuals attesting to the genuineness of the purported previous relationship. For the purposes of this review, and noting the Subclass 801 Partner visa is subject to time of decision criteria, the Tribunal is ultimately satisfied the applicant and the sponsor were in a partner relationship at some point during the time claimed and that this relationship has ceased. The Tribunal questioned the applicant concerning the financial aspects of the former relationship; the nature of the applicant and sponsor’s former household; the social aspects of the relationship; and the nature of the parties’ commitment to each other. The applicant was in fact granted a Partner (Temporary) (Class UK) (Subclass 820) visa on the basis of this relationship on 24 January 2013. The Tribunal, on balance, accepts the applicant and her former sponsor lived together for a period in a spousal relationship. The Tribunal, furthermore, based on the applicant’s evidence, accepts that the relationship with the sponsor has ceased.
The Tribunal noted at the hearing that a certificate had been issued by the delegate under s376 of the Act in relation to a specific folio in the Departmental file on the basis that disclosure of the material would be contrary to the public interest because it was given to the Minister, or an officer of the Department in confidence, and s375A does not apply. The Tribunal provided a copy of the certificate to the applicant and stated it considered the certificate to be valid. The Tribunal noted the applicant had been put on notice about the certificate at an earlier hearing before a differently constituted Tribunal, and invited the applicant to comment on its validity.
The Tribunal stated it had elected not to release the information to the applicant but would nevertheless provide the ‘gist’ of the adverse information in the document subject to the s.376 certificate. The Tribunal stated the information was material obtained by the Department during its investigations and protected at the request of the sponsor. The Tribunal explained the relevance of the information and the consequence under the usual provisions. The Tribunal stated to the applicant that it would be placing no adverse weight on the information. The applicant had no comment to make pertaining to the validity of the certificate or the information contained in the folio. The Tribunal has placed no adverse weight on the information contained in the folio and covered by the s376 certificate.
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?
Clause 801.221(1) of the Regulations requires that the applicant must, at the time of decision, satisfy subclause (2), (2A), (3), (4), (5), (6) or (8) of cl 801.221. Relevantly in this case, cl 801.221(2) requires that the applicant remains the spouse (as defined under s 5F of the Act), or de facto partner (as defined by s 5CB of the Act) of their sponsoring partner at that time.
As the applicant’s relationship with her former sponsor has ended, as evidenced by the applicant’s own evidence to the Tribunal, the applicant in this case no longer continues to be sponsored for the grant of the visa by her former sponsoring partner, who in this case is an Australian citizen. Accordingly, the applicant does not continue to satisfy the criteria in cl 801.221(2).
The applicant may satisfy cl 801.221 by meeting the requirements of at least one of subclauses (3), (4), (5) or (6). These prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsor has ceased. These include: the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children.
At the hearing, the Tribunal invited the applicant to make a claim and provide any information she believed may be relevant to these exceptions. The applicant stated their former sponsor was not deceased. There is no evidence or claim the applicant’s former sponsor is deceased. The applicant therefore does not meet cl 801.221(5).
The applicant confirmed she and her former sponsor had no children of their relationship. There is no evidence or claim of any court orders or legal responsibilities in relation to children. The applicant does not meet the requirement for this exception.
In the present case, the applicant claims the relationship with her former sponsor has ceased and she is seeking to establish family violence on the basis of a non-judicially determined claim of family violence. On the basis of the evidence, the Tribunal is satisfied the applicant and her former sponsor were in a partner relationship and that this relationship has ceased.
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 (see LIN23/026).
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 statutory declaration the applicant provides must be a statutory declaration under the Statutory Declarations Act 1959 (Cth). The declaration must:
·set out the allegation of relevant family violence (that is, there must be an allegation of conduct against the relevant persons or their property that causes the alleged victim to reasonably fear for or reasonably be apprehensive about his or her wellbeing or safety );
·name the person they allege has committed the family violence; and
·if the conduct of the person alleged to have committed the family violence was not towards the alleged victim:
oname the person to whom the conduct was towards; and
oidentify the relationship between the statutory declarant and the person towards whom the conduct was directed.
The applicant has failed to provide a signed statutory declaration as required under the Regulations. The Tribunal has considered all the evidence before it and finds there is nothing before it that would meet this specific requirement for the making of a valid claim of non-judicial family violence.
The Tribunal notes that a statutory declaration under reg 1.25 may be made by the alleged victim, or by a person on behalf of the alleged victim. However, in either case the author must be the spouse or de facto partner of the alleged perpetrator. The Tribunal notes a Form 1410 Statutory declaration for family violence claim has been submitted dated 10 May 2024 and signed by a psychologist, Mr Philip David Eugene Wolfers. This statutory declaration, whilst meeting the requirements as a type of evidence specified in LIN23/026 (as evidence from a psychologist), does not in any way meet the statutory declaration requirement under reg. 1.25. Mr Wolfers is neither the spouse nor de facto partner of the alleged perpetrator. His statutory declaration does not meet the requirements under reg 1.25.
Given the applicant has failed to provide a statutory declaration as required by reg 1.25, the applicant has not provided the required evidence as required by reg 1.24 for the making of a non-judicially determined claim of family violence.
For completeness, the Tribunal notes the applicant’s provision of a psychologist report and statutory declaration dated May 2024 from Mr Wolfers; and a social work assessment report and statutory declaration of Ms Lisa Laba-Sarkis dated 9 May 2024 each met the requirements of the instrument LIN23/026 as evidence of a type and number specified by the Minister for these purposes. This does not however alleviate the requirement for a statutory declaration to be provided under reg 1.24.
The applicant provided at the hearing a Form 888 Supporting statement in relation to a Partner or Prospective Marriage visa application dated 14 May 2024 from Mr Truong Thanh Minh. He claims to have known the applicant and her former sponsor for 6 years. The document states that in or about 2018 he attended job to fix a hole in the wall of the applicant and her former sponsor’s home. He writes that the applicant told him that she and her then sponsor had argued, and he had caused the damage. He writes that he told the applicant to contact the Police, but the applicant stated she did not want the sponsor to get in trouble. The Tribunal acknowledges the statement, but notes it is not evidence in any way that meets the requirements for the making of a non-judicially determined claim of family violence under reg 1.24 and reg 1.23.
The Tribunal notes that it clearly stated to the applicant at her hearing that for it to consider whether she was a victim of non-judicial family violence that she would be required to make a valid claim. The Tribunal pointed out that a valid claim was when the Tribunal was provided with documents set out in Schedule 1 of reg 1.24(b) of the Regulations. The Tribunal discussed the type and items of evidence and information that must be included. The Tribunal stated that if the applicant did not provide the documentation specified, with the information required, then she would not have made a valid claim and the Tribunal would have no alternative but to affirm the decision under review.
The Tribunal has provided the applicant with the opportunity to provide appropriate evidence in order to make a valid claim. The applicant had active legal representation in relation to her claim. The applicant’s representative attended the Tribunal’s hearing. The Tribunal notes that the applicant herself is experienced with the Tribunal process, having appeared before the Tribunal on multiple occasions since 2015. The applicant has not provided evidence in the nature and form required to make a valid claim of judicially determined, or non-judicially determined, family violence. Whilst the applicant has provided evidence specified by the Minister by instrument in writing for reg 1.24(b) of the Regulations, which requires a minimum of two items of evidence from the list in Schedule 1, and no more than one of each type of evidence listed, she has not provided a statutory declaration as required under reg 1.25.
Therefore, the evidence presented does not meet the requirements of reg 1.25 and subsequently reg 1.24. As such, a non-judicially determined claim of family violence has not been made under reg 1.23.
The Tribunal would note that it is not necessary for the Tribunal to point out the deficiencies in the evidence an applicant provides for the purposes of making a family violence claim: MIAC v Pham [2008] FCA 320; Doan v MICMSMA [2022] FedCFamC2G 405. In this case however, the Tribunal in some detail at the hearing, explained to the applicant the process of making a valid claim of family violence. The Tribunal discussed the process of making a valid claim and the items required to make a valid claim of non-judicial family violence. The Tribunal clearly stated that if the applicant did not provide the documentation required to make a valid claim, then the Tribunal would have no alternative but to affirm the decision under review. The Tribunal considers the applicant, who had engaged representation for the purposes of this review, was on notice of the evidence required to make a valid claim and has had adequate opportunity to provide documents that meet the requirements for the making of a non-judicially determined claim of family violence. The Tribunal clearly put the applicant on notice that the making of a valid claim of non-judicially determined family violence was significant and determinative.
The Tribunal recognises that the applicant has attempted to meet the criteria to make a valid claim of non-judicially determined family violence. The Tribunal does not have the power in such circumstances to cure any defect in relation to the types of evidence that have been submitted in support of the claim of non-judicially determined family violence. If such evidence is not provided, the Tribunal has no alternative other than to affirm the decision under review on the basis that a valid claim has not been made for the Tribunal to consider.
At the time of decision, the applicant has made neither a judicially determined nor a non-judicially determined claim of family violence in accordance with reg 1.23. Accordingly, the Tribunal has no valid claim to consider.
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 801.221(6)(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.
Accordingly, given all the above, the applicant does not meet cl 801.221.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Justin Owen
Deputy President

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 2614

29 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice