Maolee (Migration)

Maolee (Migration) [2020] AATA 3923 (20 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Alita Maolee
CASE NUMBER:  1822356
DIBP REFERENCE(S):  BCC2014/1423508
MEMBER:Ann Duffield
DATE:20 July 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa
Statement made on 20 July 2020 at 9.55am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – applicant was no longer in a spousal relationship with the sponsor– unable to meet the evidentiary requirements– victim of family violence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, rr 1.21, 1.23,1.24, Schedule 1, Schedule 2, cl 801.221
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 on 31 July 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 10 June 2014 on the basis of her relationship with her sponsor, Darren. 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 (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 applicant was no longer in a spousal relationship with the sponsor and was unable to meet the evidentiary requirements specified in the Act.
The applicant appeared before the Tribunal via teleconference on 16 June 2020 at 1pm to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current partner.
The applicant was represented in relation to the review by her registered migration agent and they participated in the teleconference.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant provided the Tribunal with a copy of the delegate’s decision along with her application for review.
The applicant is a citizen of Thailand born on 7 December 1989 (31 years old). She first arrived in Australia on a subclass 300 visa on the basis of her forthcoming marriage to her sponsor at the time, Mr Arthur Stefanopoulos, on 11 May 2013. That relationship failed and the applicant remained in Australia for the duration of the validity of her subclass 300 visa.
The applicant met her new sponsor, Darren, around October 2013 on a chatroom and met for the first time on 24 October 2013. They went to Thailand together on 28 December 2013 and decided to marry. The applicant returned to Australia on a Tourist visa on 12 March 2014. They were married on 4 May 2014. The applicant was granted a subclass 820 visa on 7 July 2015.
The sponsor wrote to the Department on 4 September 2017 informing them that his relationship with the applicant had broken down and they were no longer in a relationship. The sponsor indicated that he wished the Department would still grant the applicant her visa as they were still close personal friends.
The Department wrote to the applicant on 15 March 2018 providing her with an opportunity to comment on the status of her relationship with the sponsor. The applicant responded through her migration agent on 11 April 2018 claiming to have suffered family violence.
On 20 April 2018 the Department wrote to the applicant again requesting that she provide evidence to support her claims in accordance with the requirements under the family violence provisions of the Regulations. She did not respond to this request.
The Department wrote to the applicant again through her migration agent on 23 May 2018 again requesting the required evidence in accordance with the Regulations. This letter also provided details of the type of evidence deemed acceptable in order to meet these requirements.
The applicant made contact with the Department via telephone on 25 May 2018 and advised that she had no evidence to provide. The applicant was advised to provide a written response to the Department by 23 May 2018. The Department received no further information or evidence from the applicant in support of her family violence claims.
The delegate refused the visa on 31 July 2018.
The applicant lodged the application subject to this review on 2 August 2018.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with Darren, the visa sponsor has ceased, and she has been the victim of family violence.
For the purposes of this decision, the Tribunal accepts that 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.
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).
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?
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.
The applicant in this case is seeking 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.
A statutory declaration under r.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: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).
On 15 April 2020 the Tribunal wrote to the applicant inviting her to comment upon information that her relationship with the sponsor had ceased and to provide information to support her claim of family violence.
The applicant provided the Tribunal with the following documents:
a.A statutory declaration signed by her on 23 April 2020 stating that she was in a bad relationship with the sponsor and felt scared, threatened, confused and disrespected; that she was used emotionally, physically and financially. She did not claim any physical abuse and believed that she had to suffer physical violence in order for that to be domestic violence. She claims that she did not believe she had any reason to make a complaint to authorities as there was no hard evidence. However she now believes that she was a victim of family violence.
b.A statutory declaration signed by Mr Bryce Madejewski on 11 June 2020 stating that he and the applicant are now in a relationship and he believes her account of the abuse she received from the sponsor in her past marriage to him. Mr Madejewski states that the applicant was alone in a strange country with no understanding of her rights under law and as such did not register an official complaint or follow due process and therefore accumulated no legal or other evidence to support her claims. Mr Madejewski is an airforce officer and not a competent person required by the Regulations to meet the evidentiary requirements. Furthermore, Mr Madejewski does not name the alleged perpetrator, referring to him only as the applicant’s ex-husband.
During the hearing the Tribunal put to the applicant that the documentation she had provided did not meet the evidentiary requirements. The Tribunal put to the applicant that she was required to provide a statutory declaration from herself setting out the details of her alleged abuse, naming the perpetrator, along with two other kinds of evidence specified in the Regulations. The Tribunal put to the applicant the kinds of documents required and the types of competent persons who would need to provide the evidence. The Tribunal put to the applicant that both the Department and the Tribunal had asked her for this evidence and that she had not, to date, provided the necessary documentation.
The Tribunal asked the applicant if she had received this information from the Department or the Tribunal or had it provided to her by her agent and she confirmed that she had received a copy of Schedule 1.
At the hearing the applicant requested additional time to provide the relevant information. The Tribunal granted that request and allowed her two weeks to provide that information. On 29 June 2020 the applicant, through her agent, requested a further two weeks to provide the information. That request was granted, and the Tribunal informed the applicant that the information needed to be provided to the Tribunal on 17 July 2020.
On 16 July the applicant, through her agent, requested an additional period of time to provide submissions stating that the applicant had been attending a psychiatrist and needed additional appointments in order for the psychiatrist to provide a report.
The Tribunal refused this request putting to the applicant, through her adviser, that she had been on notice of the evidentiary requirements for documentation by the Department of Home Affairs since April 2018 and again, through the Tribunal, since 15 April 2020. The Tribunal put to the applicant that she had been given abundant opportunity to obtain the relevant documentation.
In request for further time the applicant, through her adviser, provided a short email from Susan Lau, a clinical psychologist, stating that she would require at least 2 sessions for more assessment before providing a statutory declaration. She states that the applicant was very distressed in the first two sessions and she was unable to provide an assessment.
The applicant also provided a letter from a Dr John Smith who referred the applicant to Ms Lau. Dr Smith states that he has read the applicant’s statutory declaration and that she has described symptoms of Post Traumatic Stress Disorder as a result of her marriage to the sponsor.
Neither of these documents meets the threshold for the evidentiary requirements of Schedule 1.
Therefore, the evidence presented does not meet the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23.
CONCLUSION
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa
Ann Duffield
Senior 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.

[2020] AATA 3923

20 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness