MAGABLEH (Migration)

[2022] AATA 2918

MAGABLEH (Migration) [2022] AATA 2918 (13 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashraf Khaled Mohammad Magableh

REPRESENTATIVE:  Mr Muhammad Ali Sukhera

CASE NUMBER:  1803752

HOME AFFAIRS REFERENCE(S):          CLF2013/129603 CLF2018/16448

MEMBER:Moira Brophy

DATE:13 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

·cls 801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Statement made on 13 July 2022 at 1:32pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – genuine and continuing relationship at the time of decision – relationship ceased – family violence claims – separation for long periods – statutory declarations from health professionals – opinion of an independent expert – decision under review remitted

LEGISLATION

Family Law Act 1975
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 801.221; rr 1.21-1.26

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 February 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 7 June 2013 on the basis of his relationship with his sponsor, Ms Rabiaa Al Sayegh. 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).

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 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.

4. 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 the parties were in a genuine and continuing relationship at the time of decision.

5. The applicant appeared before the Tribunal on 1 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Stan Hyadatt, and from Mr Sadam Maqableh.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

8. Mr Magableh is a 42-year-old citizen of Jordan. He has declared no previous relationships. Mr Magableh’s father is deceased. His mother resides in Jordan as do his four brothers and four sisters. He has one brother and one sister living in Australia. Mr Magableh arrived in Australia on 8 May 2007 on a Student visa (Subclass 570). Mr Magableh was granted two further Student visas. On 24 January 2008 Mr Magableh made application for a Student visa (Subclass 573). This application was refused on 25 March 2008 and Mr Magableh sought merits review of the decision. The Migration Review Tribunal remitted the decision to the Department and the visa was granted on 3 August 2009. A further Subclass 573 visa was granted on 29 March 2011, which was valid to 15 March 2012. On 13 March 2012, Mr Magableh lodged an application for a Temporary Graduate (Subclass 485) visa and this application was refused on 24 October 2012. Mr Magableh sought merits review of the decision and on 7 May 2013 the Migration Review Tribunal affirmed the decision to refuse the application.

9. On 7 June 2013 Mr Magableh lodged his application for a Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa. On 19 December 2014 a delegate refused the application for a Partner visa, finding the applicant was not the holder of a substantive visa at the time he lodged his application for a partner visa and he was therefore unable to meet the Schedule 3 requirements, and there were no compelling circumstances sufficient to waive the requirements. On 24 December 2014 Mr Magableh sought merits review of the delegate’s decision. On 16 August 2016 the AAT (differently constituted) set aside the decision of the delegate, finding that there were compelling circumstances to waive the Schedule 3 requirements and remitting the matter to the Department. On 17 October 2016 Mr Magableh was granted a Partner (Temporary)(Class UK) (Subclass 820) visa valid to 5 February 2018. On 5 February 2018 the delegate made a decision to refuse Mr Magableh a Partner (Residence) (Class BS) (Subclass 801) visa as he was not satisfied the parties were in a genuine and ongoing relationship, noting the sponsor had been outside Australia for the period since the Subclass 820 visa had been granted.

10. Ms Rabiaa Al Sayegh is a 41-year-old who was born in Lebanon. Ms Al Sayegh was previously in a de facto relationship with Mr Allen Elbadar in the period from 23 July 2003 to 24 May 2009. There were two children of the relationship. Ms Al Sayegh was sponsored to Australia by her then partner on a Partner (Subclass 309) visa. She became an Australian citizen on 17 February 2010.  Her father is deceased, and her mother lives in Lebanon, as do her three sisters and one brother.

11. The parties stated that they met on 23 July 2012 at The Establishment in Sydney. They commenced a de facto relationship on 24 December 2012 and committed to a shared life to the exclusion of all others on 20 May 2013. On 17 June 2013 the parties registered their de facto relationship with NSW Registry of Births Deaths and Marriages.  The parties married on 16 February 2014. On 7 June 2013 an application for a Partner (Residence) (Class BS) (Subclass 801) visa was lodged.

12. On 11 September 2019 the applicant advised the relationship with his sponsor had broken down because of family violence.

13. The applicant provided the following to the Tribunal:

    ·A Form 1410 statutory declaration of the applicant, in which the applicant stated that he considered the relationship with the sponsor to be over from 17 July 2019;

    ·A New South Wales Police incident report card;

    ·Email correspondence from the police;

    ·An initial airline reservation before the sponsor abruptly left Australia.

14. On 28 February 2022 the applicant provided a confidential psychological report from Maria Paula Fuentes Bahamonde. The applicant had been referred by Victims Services for assessment and therapy following exposure to violence. A statutory declaration from Ms Maria Paula Fuentes Bahamonde dated 2 July 2020 was also provided. In that statutory declaration she stated that she had met the applicant on a regular basis for counselling and treatment since September 2019. In her professional opinion, the applicant had been a victim of family violence.

15. On 28 February 2022 the applicant provided a statutory declaration (Form 888) from Ms Cathleen Samantha Finn. She had provided an earlier Form 888 in July 2016 attesting to the genuine nature of the relationship between the applicant and his sponsor, and in this Form 888 dated 5 September 2019 she referred to the changes in the demeanour of the applicant and that he seemed, in her opinion, to be depressed.

16. On 10 March 2022 the applicant provided a statutory declaration from Dr Dayna Miriam Griffin, general practitioner, stating she first commenced treating the applicant on 2 December 2021 but he had been treated by her colleague Dr Kelvin Hon since 24 December 2019. A copy of a mental health care plan for Mr Magableh dated 2 December 2019 was provided.

17. Prior to the hearing, the migration agent for the applicant provided additional documents to the Tribunal, including:

    ·Evidence of registration with ASIC of two companies the applicant was director of;

    ·Evidence of a bank account held in the name of the applicant and the sponsor in the period to March 2019;

    ·Notification of change in circumstances provided by the applicant dated 15 March 2019 (Form 1022);

    ·Evidence of money transfers being made by the applicant to the sponsor;

    ·Translated copy of court orders made in Lebanon on 3 April 2018 to prevent the sponsor leaving Lebanon with her children;

    ·Letter from the accountant and registered tax agent for two companies the applicant was director of outlining the yearly turnover and wages for both companies in the period from 2017 to 2021;

    ·Evidence of the withdrawal of the application for an apprehended violence order against the sponsor dated 4 September 2020 in the Local Court at Sutherland;

    ·Fair trading notification of change of tenancy (undated) recording the sponsor had moved in to premises occupied by the applicant;

    ·Professional profile for the applicant;

    ·Provisional order for Apprehended Domestic Violence against the sponsor dated 18 January 2020;

    ·Copy of the sponsor’s advice of her changing address with Transport for New South Wales;

    ·Copies of correspondence sent to the sponsor shared with the applicant;

    ·Photographs taken of the applicant and the sponsor together and with others;

    ·Copies of communication between the applicant and the sponsor in the period they were geographically apart.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. In the present case, the applicant claims the relationship with Ms Rabiaa Al Sayegh, the visa sponsor, has ceased, and he has been the victim of family violence.

19. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided by Mr Magableh at the hearing. The Tribunal has also taken into account the documents received prior to and after the hearing.

20. In this matter the Tribunal is mindful of the history of the matter including the findings of the AAT (differently constituted) on 16 August 2016.

    Was there a spousal relationship?

21. The Tribunal finds that Mr Magableh and Ms Al Sayegh met on 23 July 2012 at The Establishment in Sydney. They commenced a de facto relationship on 24 December 2012 and committed to a shared life to the exclusion of all others on 20 May 2013. On 17 June 2013 the parties registered their de facto relationship with NSW Registry of Births Deaths and Marriages.  

22. The couple did have a joint bank account and shared finances. The Tribunal is satisfied that they regularly celebrated birthdays and other significant life events with their friends. Photographs taken during the period of the relationship show the couple socialising with others, including their wedding. They went on family outings together with the children of the sponsor.

23. The Tribunal accepts the relationship was challenged by the long periods the parties spent apart and that this came about largely because of custody proceedings between the sponsor and her ex-partner who was the father of her two children These proceedings were taken in Lebanon and prevented the sponsor from leaving Lebanon with her children for a long period between June 2016 and December 2018. The Tribunal has taken into account the financial support provided by the applicant to the sponsor during this period.

24. The Tribunal has also given weight to the evidence in the statutory declarations from friends provided to the Tribunal.

25. 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.

26. 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).

27. 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?

28. 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 of the Regulations is provided.

29. 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 of the Regulations and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116).

30. 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).

31. Mr Magableh submitted a Form 1410 statutory declaration to the Tribunal setting out the alleged family violence perpetrated by Ms Al Sayegh. He states that Ms Al Sayegh often verbally abused him and he suffered from physical, emotional and psychological abuse from her.

32. A statutory declaration was submitted with the Form 1410 from Maria Paula Fuentes Bahamonde, psychologist. In that she stated Mr Magableh had been referred for therapy by Victims Services following police involvement in his marriage due to domestic violence allegedly perpetrated by his estranged wife. He described to her a relationship defined by the aggressive behaviour of the sponsor, which had commenced with screaming, swearing and public and private insults that had progressed to physical violence perpetuated by her. He described his symptoms which she opined were consistent with significant anxiety and panic disorder. He told her the marriage had begun well and while there was aggression from the sponsor it was not directed at him. Initially he saw it as something he could help her with but as their marriage progressed so did the aggression. It was often directed at either her children or him. According to Ms  Bahamonde. the sequelae of the family violence events described to her in consultations with Mr Magableh were indicative of his continuing to experience significant emotional repercussions from his experiences during his marriage, and he had been significantly impacted in a negative way.

33. The applicant also provided a statutory declaration from Dr Dayna Miriam Griffin, general practitioner, stating she first commenced treating the applicant on 2 December 2021 but he had been treated by her colleague Dr Kelvin Hon since 24 December 2019. A copy of a mental health care plan for Mr Magableh dated 2 December 2019 was provided.

34. Documents meeting the requirements of reg 1.25(2) and reg 1.26 of the Regulations have therefore been provided.

35. Therefore, the evidence presented meets 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?

36. 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 20 June 2022, the independent expert provided an opinion that the applicant had suffered relevant family violence.

37. The independent expert considered the applicant had suffered family violence because of actual and threated physical abuse and verbal abuse. She found Mr Magableh’s account of his mental health impacts, by way of anxiety and depression, which significantly affected his wellbeing over time, was consistent with his fearing for or becoming reasonably apprehensive about his own safety or wellbeing.  The independent expert concluded that the applicant met the criteria for relevant family violence according to the Regulations because of both actual and threatened physical abuse and verbal abuse.

38. 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.

39. Where the independent expert’s opinion is that a person has suffered relevant family violence, at least part of the violence that led to that opinion must have occurred while the married or de facto relationship existed. The Tribunal was satisfied the family violence as found by the independent expert occurred during the period between January 2016 and May 2016, that is during the period the relationship was on foot.

40. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for reg 1.22.

41. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cls 801.221(6)(b) and (c). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    decision

42. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

    ·cls 801.221(6)(b) and (c) of Schedule 2 to the Regulations.

    Moira Brophy
    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 sub regulations  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.