MA (Migration)

[2022] AATA 1096

MA (Migration) [2022] AATA 1096 (26 April 2022)

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased and sponsorship withdrawn – non-judicially determined claim of domestic violence – no statutory declaration from applicant provided – two supporting documents provided, which may or may not meet requirements – no response to tribunal’s post-hearing invitation to provide required documents – decision under review affirmed

LEGISLATION

Migration Regulations 1994 (Cth), rr 1.24(b), 1.25

STATEMENT OF DECISION AND REASONS

1. This is a decision to affirm the refusal decision dated 31 May 2019. This review decision is made 26 April at 11:56am in Melbourne by Member N. McGowan.
   
   

2. The applicant Xiulian Ma applied in Australia for the 820 and 801 subclass visas on 18 December 2018: Departmental case number is BCC2018/5702384.
   
   

3. The applicant applied for the visas on the basis of her married relationship with her Australian citizen sponsor. According to the refusal ‘decision record’ of 31 May 2019, a copy of which the applicant provided this review, her sponsor withdrew his sponsorship of her visas on 4 February 2019.
   
   

4. The applicant had been advised of his withdrawal on 28 March 2019 by the Department. On 28 April 2019 the applicant wrote to the department stating her relationship had not broken down, is ongoing, and is unable to believe her sponsor has withdrawn (refer folio 43 of the department file). On 30 April 2019 the applicant was asked by the Department to provide evidence of the reconciliation/claimed ongoing relationship. The applicant did not respond to the Department at that time. The Minister’s delegate made the decision now subject of this review (on 31 May 2019).
   
   

5. On 27 July 2021 the applicant’s solicitor sent the Tribunal the following email:

   We are informed by the applicant that she is going to provide information and documents regarding to domestic violence including:

   1.     Statutory Declaration of the applicant

   2.     Record for seeing GP Zheng WANG Provider No: 261361AF Health Dew Medical Centre

   3.     Medical report/Letter from Monash Health psychological referred by GP Zheng WANG

   4.     Refuge report/Letter from Safe Steps Family Violence Phone Line Victoria

   The social worker in refuge did the full assessment for applicant and offered further following with her.

   However, the Great Melbourne is under Covid-19 lock down, especially medical centre and hospitals are high risk spots, please allow us extra 28 days to collect above reports/letters.

   Kind Regards

   Ian Reagan

   Partner Solicitor

6. As the Tribunal was unable to make a favourable decision on the information before it alone, it invited the applicant (on 25 August 2021) to a hearing to provide any evidence or claim to advance her visa applications. The Tribunal conducted that hearing, as part of its review, on 15 September 2021. At the time of the hearing, none of the above documents (outlined in the email at point (4)) had been provided to the Tribunal.
   
   

7. On 1 September 2021 the applicant’s representative provided to the Tribunal a ‘Response to hearing invitation’ form signed 31 August 2021 in which the applicant indicated to the Tribunal an intention to rely upon two documents (at Part 3 of that Form): a ‘statutory declaration’, and a ‘Refuge assessment (Safe Step)’. Neither document was provided to the Tribunal prior to the hearing conducted 15 September 2021.
   
   

8. At the conclusion of the 15 September 2021 hearing the applicant’s solicitor was granted until 29 October 2021 (a period he requested) to provide any further evidence whatsoever (including any argument/claim/evidence). Specifically, the applicant’s solicitor indicated he sought to provide a document from ‘Safe Steps’ in support of the applicant’s claims under the family violence provisions.
   
   

9. On 24 October 2021 the following email was received from the applicant’s solicitor:

   Dear Sir/Madam,

   Referring to Case 1915165, please find DV assessment for applicant Xiulian MA.

   Kind Regards
   Ian V. REAGAN

10.  Attached to the above email (of 24 October 2021) were two documents. Neither is a statutory declaration from the applicant herself. Even were the two documents to meet the requirements specified under the Act and Regulations (including in the form and with the content outlined in Schedule 1) the applicant still cannot fulfil the requirement under law for a ‘valid claim’ of non-judicial family violence because she has not provided a statutory declaration.

11.  At the time of this decision the applicant has not made a ‘judicially determined’ claim. The applicant has not provided the necessary statutory declaration in order to establish a ‘valid’ claim for family violence under regulation 1.24(b) of the Migration Act. Relevantly, this requires a statutory declaration under r.1.25, and the type and number (two) items of evidence specified by the Minister in instrument IMMI 12/116.

12.  The applicant has been granted sufficient time to acquire the requisite evidence (including a statutory declaration by herself) but has not provided the evidence specified (and as discussed above).

13.  Given all the above, and for the reasons stated, the Tribunal has no alternative but to affirm the decision under review.

14.  NB On 3 March 2022 the Tribunal, on its own initiative and in order to provide the applicant with every reasonable opportunity to present her best case, wrote to her solicitor and asked him to “Please detail for the Tribunal the exact documents your client is seeking to rely upon to establish a valid claim of having suffered family violence,”.   The Tribunal granted the applicant until 17 March 2022 to provide a response. No response was received to the Tribunal’s email (of 3 March 2022) as of the date of this decision.

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

1. 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.

2. 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

1. 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.

2. 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

1. 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.

2. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.