Mahdavi (Migration)

[2021] AATA 4320

Mahdavi (Migration) [2021] AATA 4320 (1 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Farzaneh Mahdavi

CASE NUMBER:  1825963

DIBP REFERENCE(S):  BCC2017/1667844

MEMBER:Meena Sripathy

DATE:1 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl.820.221(3) of Schedule 2 to the Regulations.

Statement made on 01 September 2021 at 12:13pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – family violence claim – non-judicially determined claim – evidential requirements met – application for a final ADVO dismissed – contemporaneous medical report – detailed witness statement – two separate psychologists reports – letters of support – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 1.25; Schedule 2, cl 820.221

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 Immigration on 28 August 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 10 May 2017 on the basis of her relationship with her sponsor, Julian Timothy Brabin Cooper. At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (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.820.211 and 820.221 which require that at the time of application and decision, 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.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(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.820.221 because the delegate was not satisfied that the applicant had provided evidence that met the requirements for a non-judicially determined claim of family violence in accordance with legislative requirements.

5. On 12 October 2018, 17 October 2018 and 2 November 2020 the applicant provided further evidence in support of the application to the Tribunal.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

   CLAIMS AND EVIDENCE

8. The applicant is a 36 year old Iranian national.  She first arrived in Australia on 18 April 2017 as the holder of a Subclass 300 Prospective Marriage visa, valid to 29 December 2017.  She lodged the present application on 10 May 2017, on the basis of her marriage to Julian Timothy Cooper, an Australian citizen on 29 April 2017, who submitted a sponsorship in support of the application.

9. On 10 September 2017, the Department was notified by the sponsor that the relationship had ceased and he withdrew sponsorship of the application.

10. The applicant informed the Department by letter dated 22 September 2017 that the relationship with Julian Cooper, the visa sponsor has ceased, and she has been the victim of family violence.

11. On 6 October 2017 the Department invited the applicant to provide evidence to support the existence of a spousal relationship prior to the relationship breakdown.  She responded to this invitation on 6 November 2017 with a statement and supporting evidence, including wedding and other social photos, emails and phone messages between the parties, correspondence received at the address she lived at with the sponsor, evidence of travel for honeymoon and holiday, listing of bank transactions an course payments made by sponsor, and statutory declarations in support of the relationship by friends.  The delegate was satisfied on the evidence that the applicant and sponsor were in a relationship that ceased.   On the basis of the same evidence included in the Department file, the Tribunal is also 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.

12. Under r.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 r.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: r.1.23(3), (5), (7), (12), (14).

13. In the present case the applicant is seeking 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?

14. Under r.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 r.1.24 is provided.

15. In the present case, the applicant submitted to the Department, on 23 May 2018, the following evidence in support of her claims of family violence:

    ·Form 1410 Statutory Declaration made by her on 22 May 2018

    ·Letter by Catherine Tulinsky, social worker, dated 8 December 2017

    ·Report prepared by Ann Marie De Santa Brigida, psychologist, dated 1 November 2017

    ·Discharge Referral Note, prepared by Jack Giddey, Royal North Shore Hospital dated 12 September 2017

    ·NSW Police interview transcript 9 September 2017

    ·NSW Police Statement of a witness 27 October 2017 -25 January 2018

    ·Application for an Apprehended Domestic Violence Order (ADVO)

    ·Provisional ADVO

    ·Unexecuted undertaking given by Julian Timothy Brabin Cooper

    ·Assorted emails, photographs, legal correspondence and SMS/social media screenshots

16. On 8 June 2018 the Department invited the applicant to provide evidence of family violence in accordance with the requirements set out in the Migration Regulations. No further evidence was received, noting that the letters from the social worker and psychologist are required to be in Statutory Declaration form.

17. A file note on the Department file indicates on 27 August 2018 an officer sought confirmation from Burwood Local Court regarding the ADVO matter and was informed that the application for a final ADVO was dismissed on 27 June 2018. 

    CONSIDERATION OF EVIDENCE AND FINDINGS

18. The applicant in this matter seeks to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116).

19. The delegate refused the application on the basis that, having provided a Form 1410 - Statutory declaration for family violence claim dated  22 May 2018 and a Discharge Referral Note prepared by Jack GIDDEY (JMO), Royal North Shore Hospital on 12 September 2017 she had not provided one further piece of acceptable non-judicial evidence, as neither of the letters by Catherine Tulinsky, social worker, or report by Ann Marie De Santa Brigida, psychologist were in Statutory Declaration form as required by Schedule 1 of IMMI12/116 and the NSW Police interview and statements were not made by a police officer, or person other than the alleged victim.

    Evidence before the Tribunal

20. The applicant sought review of the decision to refuse her visa to the Tribunal on 5 September 2018. On 12 October 2018, she provided the following new documents in support of her application:

    ·Statutory Declaration by Ann Marie De Santa Brigida, Registered Psychologist , dated 17 September 2018 declaring that the applicant was referred to her by Justice Health, Victims of Crime and has had 14 consultations with her between 23 October 2017and 12 September 2018, and stating an opinion that her presentation is consistent with being a victim of domestic violence.

    ·Statutory Declaration by Rukhshana Sawar, Project Officer at Immigrant Women’s Speakout Association of NSW, dated 12 October 2018, explaining how and why the Department’s last correspondence of 8 June 2018 requesting specific further evidence was not responded to.  

    ·Copies of previous documents provided to the Department by Ms De Santa Brigida and Ms Tulinsky and correspondence between the Department and the applicant.

21. On 17 October 2018 the Tribunal received a letter from Rukhshana Sarwar, Project Officer, Immigrant Women’s Speakout Association NSW on organisational letterhead, setting out her assessment of the applicant’s situation regarding her claims of domestic violence at the hands of her sponsor.  The letter details the applicant’s history, claims of domestic violence and sets out specific incidents on which the claims were made, and states the opinion of the writer that the applicant has suffered domestic violence at the hands of her visa sponsor.

22. On 2 November 2020 the Tribunal received the following further documents in support of the application:

    ·Notice of decision dated 3 April 2018 relating to an application for Victims Support under the Victims Rights and Support Act 2013 (NSW) determining that the applicant was the victim of an act of violence relating to a claim of domestic violence occurring from 1 April to 9 September 2017 at the hands of her (now) ex husband, assessed on the basis of documentary evidence including police and health reports.

    ·Statutory Declaration by Neelab Omar, Registered Psychologist dated 9 December 2018, declaring the applicant attended 6 counselling sessions commencing 14 October 2018, reporting she was a victim of domestic violence at the hands of her ex husband Julian Cooper, and describing her presenting symptoms and treatment offered.

23. The Tribunal has assessed the evidence before it and makes the following findings.

24. As detailed above, the applicant has provided the following evidence, relevant to the evidence referred to in r.1.24  (ie, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116)): a Statutory Declaration from herself dated 22 May 2018; Discharge Referral Note, prepared by Jack Giddey, Royal North Shore Hospital dated 12 September 2017; Statutory Declaration by Ann Marie De Santa Brigida, Registered Psychologist, dated 17 September 2018.  In addition to these she relies on the letter by Catherine Tulinsky, social worker, dated 8 December 2017 as a supporting document and has also submitted a letter from a project worker from  Immigration Women’s Speakout Association of NSW dated 17 October 2018, a further Statutory Declaration by another registered psychologist, Neelab Omar dated 9 December 2018 and evidence of a determination relating to a claim for Victims Support in respect of a claim of an act of violence relating to domestic violence.

25. The Tribunal has considered the above evidence against the regulatory requirements and is satisfied that statutory declarations meeting the requirements of r.1.25(2) and 1.26 have been provided from the applicant and Ms Ann Marie De Santa Brigida, Registered Psychologist. The Tribunal accepts the evidence from Ms De Santa Brigida and the Discharge Summary from RNSH meet the requirements set out in Schedule 1 of Immi12/116 in respect of their source and content. 

26. Therefore, the evidence presented meets the requirements of r.1.24. As such, a non-judicially determined claim of family violence has been made under r.1.23.

    Has the applicant suffered family violence?

27. The delegate, having not accepted the applicant had made a non judicially determined claim of family violence on the evidence before the Department, did not proceed to consider the matter further.

28. On review, having accepted that a non judicially determined claim has been made, the Tribunal is required pursuant to r. 1.23(10) to consider for itself whether the alleged victim has suffered relevant family violence. This involves making a subjective assessment having regard to all of the evidence before it, including the statutory declarations provided by the applicant and any other evidence provided by the applicant or anyone else (including the former sponsor) and any evidence obtained at hearing or during the review process.  If, having regard to all of the evidence, the Tribunal is satisfied that relevant family violence has been suffered, it must consider the application on that basis.

29. There is information included in the Department file that indicates the sponsor denies and disputes the applicant’s claims and that the application for a final ADVO was dismissed before the courts.  This evidence suggests that the issue of whether she suffered family violence perpetrated by the sponsor is contested by the perpetrator. 

30. On the other hand, there is a substantial amount and detail of evidence before the Tribunal that supports the applicant’s claims, including a contemporaneous medical report relating to an incident of the applicant allegedly having been pushed down stairs and sustaining injuries to her hand in September 2017,  and an application for an ADVO and Provisional ADVO Order made subsequent to this.  

31. The Tribunal has also carefully considered the very detailed witness statement by the applicant prepared at Campsie Police Station between October 2017 and January 2018 and her detailed Statutory Declaration dated 22 May 2018.  These documents and supporting material provided in the annexures indicates the relationship between the applicant and sponsor was complicated and problematic from an early stage, and she provides detailed accounts of various forms of abuse, including sexual, emotional, psychological and financial perpetrated by the sponsor over an extended period, commencing from her arrival in Australia.

32. Reports have been provided by two separate psychologists who each had an extensive number of sessions with the applicant from October 2017 up to December 2018.   The reports of both psychologists set out details of her presenting symptoms, her account of what she experienced at the hands of her husband and their opinions as to whether she suffered family violence.  A social worker the applicant was referred to by the hospital also provided a letter supporting her claims.  The applicant has been supported over an extended period by Immigrant Women’s Speakout Association of NSW, a specialist service for immigrant women at risk due to domestic violence and this organisation has also provided a letter supporting her claims of family violence. 

33. The Tribunal also notes the evidence of the determination in her favour that she was the victim of an act of violence relating to claims of domestic violence, and award of financial compensation made to her under the Victims Rights and Support Act 2013 (NSW). However as this determination is solely based on an assessment of specific documentary evidence (being police and health reports already considered by the Tribunal) and is made for a distinct statutory purpose quite separate to the present context, the Tribunal gives the determination itself little weight in its consideration of whether the applicant suffered relevant family violence for present purposes.

34. Considering all of the above evidence, the Tribunal finds the applicant’s claims of family violence suffered during her relationship with the sponsor has been detailed, substantially consistent and supported by relevant evidence including correspondence and communications between herself and the sponsor and other individuals and on this basis the Tribunal finds it credible and plausible.  The health report (Hospital Discharge Summary) and provisional ADVO are contemporaneous records of the incident she claims occurred in September 2017, and her record of ongoing psychological treatment since then, and contents of the reports of the psychologists and support workers are consistent with her claims.  Having considered all of the evidence before it, the Tribunal is satisfied, for the purposes of r.1.23, that the applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship. As such, the applicant is taken to have suffered family violence in the relevant sense: r.1.22.

35. 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 cl.820.221(3). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

36. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl.820.221(3) of Schedule 2 to the Regulations

    Meena Sripathy
    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.