Meira De Souza (Migration)

Meira De Souza (Migration) [2022] AATA 1658 (24 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Suellem Ritila Meira De Souza
REPRESENTATIVE:  Miss Sharon Harris (MARN: 9501060)
CASE NUMBER:  1909025
HOME AFFAIRS REFERENCE(S):          CLF2019/17853
MEMBER:Peter Emmerton
DATE:24 February 2022
PLACE OF DECISION:  Adelaide
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:
·cl 801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Statement made on 24 February 2022 at 3:23pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – genuine relationship existed prior to the extended period of family violence – victim of family violence – relationship ceased– a non-judicially determined claim of family violence has been made under reg 1.23 – decision under review remitted
LEGISLATION
Family Law Act,
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.21,1.22, 1.23, 1.24,1.25 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 Home Affairs on 11 April 2019 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 4 March 2015 on the basis of her relationship with her sponsor, Mr John Guilherme Dutra Melo Houston. 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 Accordingly, I am not satisfied that you were the spouse or de facto partner of your sponsor (as defined under sections 5F and 5CB of the Act, respectively) prior to the relationship ceasing. I therefore find that you do not satisfy subclause 801.221(6)(b) of the Regulations. They did not consider the claims of family violence.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant claims the relationship with Mr John Guilherme Dutra Melo Houston the visa sponsor has ceased, and she has been the victim of family violence.
The Tribunal accepts the fact that the provision of evidence sufficient to satisfy it that a genuine spousal/de facto relationship existed at the point of the visa application, once the relationship has ceased to exist as a result of family violence, is more difficult to achieve.
The Tribunal has referred to the information contained in the original visa application as well as the Decision Record issued by the Department of Home Affairs dated 11 April 2019. In addition, it has read and examined the following comprehensive suite of documents presented to it, which were not available to the Minister’s delegate at the time of their decision.
·A 21-page detailed Statutory Declaration made by the visa applicant Ms Suellem Ritila Meira De Souza dated 21 February 2022
·A Statutory Declaration containing a detailed summary of the visa applicant’s treatment report issued by Ms Susan Clift, a Registered Psychologist, dated 3 August 2021, registration details provided and confirmed by the Tribunal
·An updated Psychological Report authored by Ms Susan Clift, a Registered Psychologist, dated 18 February 2022, registration details provided and confirmed by the Tribunal
·A detailed Statutory Declaration authored by Ms Pamela Alexandra Trotman, an accredited Mental Health Social Worker dated 17 February 2022, registration details provided and confirmed by the Tribunal, an internationally awarded expert with a 40-year history of working with family violence victims
·A detailed history of assistance provided and assessment of the circumstances in relation to the visa applicant, authored by SARA, (Support Assessment Referral Advocacy), dated 17 February 2022
·A Statutory Declaration made by Ms Sousa Martins dated 21 February 2022, friend
·A Statement of support made by Ms Katrina Marylyn, long term friend detailing the relationship in its’ early stages and the subsequent deterioration
- A Statement of support made by Ms Maria De Farias, long-term friend detailing the relationship in its’ early stages and the subsequent deterioration
- A Statutory Declaration made by Ms Luana Rossi dated 21 February 2022 a long-term friend and Church associate, detailing the relationship in its’ early stages and the subsequent deterioration
- A Statement of Support made by Ms Fabiana Aparecida, a long-term friend, detailing the relationship in its’ early stages and the subsequent deterioration
·A Statement of support made by Ms Lina Paselli-Kruse, Director and visa applicant’s current employer, dated 21 February 2022
·A Statutory Declaration on form 1410 made by the visa applicant, Ms Suellem Ritila Meira De Souza, dated 22 February 2022
·A Statement of support authored by the visa applicant’s sister, Ms Heid Renata de Souza dated 20 February 2022, detailing her knowledge of the applicant’s relationship and subsequent abuse
·A substantial number of high-quality photographs which demonstrate poses and interaction between the visa applicant and sponsor, in a range of social settings, formal and informal, that the Tribunal would accepts as indicating a closer and more intimate relationship than a friendship.
The Tribunal notes that the Department’s acceptance of the genuineness of the relationship between the visa applicant and her sponsor at the time of issuing the 820 Visa dated 15 April 2016.
Nature of the Household
The Tribunal notes that the range of supporting statements, Statutory Declarations, expert reports, assessments and treatments detailed in paragraph 9 of this Decision, all closely align and clearly demonstrate that a genuine relationship existed prior to the extended period of family violence as claimed by the visa applicant. The Tribunal also observes the suite of photographic evidence presented to it which clearly demonstrates poses and interaction between the visa applicant and sponsor, in a range of social settings, formal and informal, that the Tribunal accepts as indicating a closer and more intimate relationship than a friendship. The Tribunal places substantial weight on all of this evidence.
The Tribunal has assessed the discrepancy in relation to the living arrangements and additional individuals in residence cited by the delegate. It has determined that such a discrepancy is consistent with the fact that the sponsor was trying to hide the truth of the living arrangement for his own benefit, it places no weight on this issue.
Social Aspects
The Tribunal again notes that the range of statements, Statutory Declarations and expert reports and assessments detailed in paragraph 9 of this Decision, all align and clearly demonstrate that a genuine relationship existed prior to the extended period of family violence as claimed by the visa applicant. The Tribunal also observes the suite of photographic evidence presented to it which clearly demonstrates poses and interaction between the visa applicant and sponsor, in a range of social settings, formal and informal, that the Tribunal would accepts as indicating a closer and more intimate relationship than a friendship. The Tribunal places substantial weight on this evidence.
The Tribunal places no weight on the sponsor’s Tax Return referred to by the delegate in their decision. This document is prepared for or on behalf of the sponsor and can not be verified as to accuracy in relation to the fact that he chose to not state a partner for the FY 2018.
The Tribunal has concluded that the visa applicant and her sponsor presented yourselves as a couple publicly and were recognised as a genuine couple by family, associates professional agencies and, before the cessation of the relationship.
The Tribunal notes from the wide-ranging evidence presented to it, that the sponsor’s parents were clearly aware of the relationship and appear to have been unintentionally complicit in empowering the apparent abusive behaviour committed by their son which is demonstrated to have occurred.
Financial Aspects
The Tribunal accepts the Westpac Bank account statements presented to it as clear evidence that pooling of finances in some form had taken place over a substantial period of time. It has analysed the range of deposits and withdrawals and the persons indicated as having undertaken the transactions. It places substantial weight on this evidence.
It would not expect to see evidence of joint ownership of property or substantial goods based on the fact that the relationship has finished, the sponsor appears to have had a diverse range of temporary employment circumstances, the residence was rented and there is substantial evidence to demonstrate that the relationship was abusive and highly likely to have been financially extortive with the visa applicant being a victim of suspected extortion.
Nature of the Commitment of the Relationship
The Tribunal notes that the large range and number of pieces of evidence listed in paragraph 9 of this Decision correlate and lead the Tribunal to the conclusion that the parties had been in a genuine relationship at the time of application. It is also of the view that this relationship deteriorated considerably and became abusive at some point after that. It is reasonable to conclude that the source of the abuse was the sponsor. It is unlikely that such a diverse and voluminous set of evidence could be successfully fabricated in a form that clearly indicates the relationship was genuine in the early years but deteriorated into an abusive circumstance. The Tribunal has formed the view that the visa status of the applicant was being used in a manner that would encourage her to submit to the abuse for fear of the negative immigration consequences. The Tribunal places substantial weight on this evidence.
The Tribunal notes the unverified allegation that this was a contrived relationship. It places no weight on this information as it can not be tested nor responded to adequately due to the form it takes. It has however formed a view that it could possibly have come from a number of sources and 1 such source could be the sponsor’s mother or indeed the sponsor. The motivation is not able to be examined however it appears consistent with the wide-ranging evidence presented. In any case it has not been considered in this Decision because of its unsubstantiated form.
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.
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 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 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 IMMI 12/116).
A statutory declaration under reg 1.25 must be made by the spouse or partner. 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).
A 21-page detailed Statutory Declaration made by the visa applicant, Ms Suellem Ritila Meira De Souza, dated 21 February 2022 has been presented to the Tribunal. The Statutory Declaration clearly set out the allegations of family violence and provided substantial detail of those alleged physical and emotional / psychological violence incidents and behaviours which occurred over a multi-year time period.
The Statutory Declaration clearly and consistently names the person alleged to have committed the relevant family violence and provided detailed information regarding the context of the ongoing violence. The victim was the spouse or partner of the person alleged to have committed the relevant family violence. Both parties were clearly identified.
The Tribunal also notes a second compliant Statutory Declaration on form 1410 made by the visa applicant, Ms Suellem Ritila Meira De Souza, dated 22 February 2022
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?
The Tribunal refers to the evidence provided in the following documents presented as evidence to the Tribunal. The evidence graphically details the forms of sexual, financial and emotional abuse and violence over a substantial period of time. The breadth and depth of the many documents presented in evidence which are listed below substantially corroborate and reinforce the version of events provided by the visa applicant.
The Tribunal notes and places substantial weight on the evidence provided by expert professionals in this field who potentially face severe penalties if they make false statements. The Tribunal wishes to state that this has never occurred in its’ experience. It accepts the evidence and the correlating diagnosis relating to the visa applicant which has resulted from the trauma she has experienced, as fact. It notes and applaudes the valuable ongoing contribution the clinicians and experts in this field provide to victims of such heinous acts of violence and abuse.
Evidence of family violence
A 21-page detailed Statutory Declaration made by the visa applicant Ms Suellem Ritila Meira De Souza dated 21 February 2022. This document explains in detail the early positive relationship and the events which gradually escalated into gross physical, financial and emotional violence over a period of years.
A Statutory Declaration containing a detailed summary of the visa applicant’s treatment report issued by Ms Susan Clift, a Registered Psychologist, dated 3 August 2021, registration details were provided and confirmed by the Tribunal. In this Report the diagnosis, treatment and prognosis are discussed. It goes into detail explaining the standard diagnostic tests administered which indicated severe levels of stress, extremely severe levels of anxiety and depression.
It concluded that ‘her affect observed during counselling sessions, and the additional details she provided, are all congruent with an assessment that Ms. De Souza has been significantly impacted by the above trauma experiences of Domestic Violence. She has presented with ongoing symptoms of PTSD—linked to the Domestic Violence traumas, with co-morbid depression—and these symptoms are experienced to a clinically significant level.’
An updated Psychological Report again authored by Ms Susan Clift, a Registered Psychologist, dated 18 February 2022, registration details provided and confirmed by the Tribunal. Ms Clift stated the following.
‘A recent assessment review (conducted in a semi-structured interview with Ms. De Souza on 15.2.2022) indicated that the above symptomology continues to impact at significant clinical levels. The K10 (a standardized psychological test utilized by e.g. Medicare authorities) was administered on 15.2.22, and the score of 43 indicated severe depressed symptomology. Her self reports also affirmed a lack of motivation, loss of joy and lethargy commonly associated with depression.
In addition, it is my opinion that the PTSD symptoms she has been experiencing in recent
weeks/months have escalated—and in particular the Hyperarousal and Dissociative
symptoms. Her PTSD symptomology are fear based—irrational—and linked to triggers of
her abuse suffered throughout the period of Domestic Violence allegedly perpetrated by
Mr. Houston.
Ms. De Souza has participated fully in 10 counselling sessions to date—between February
2021, and February 2022. Further counselling sessions are scheduled—the next one on 1st
March. She has been referred for further counselling by her G.P., Dr Jackie Naluyimbazi,
under a MHP, “for psychological support and management as she recovers from previous
trauma from an abusive relationship’
A detailed Statutory Declaration authored by Ms Pamela Alexandra Trotman, an accredited Mental Health Social Worker dated 17 February 2022, registration details were provided and confirmed by the Tribunal. She is an internationally awarded expert with a 40-year history of working with family violence victims. In conclusion she stated the following.
A detailed history of assistance provided and assessment of the circumstances in relation to the visa applicant, authored by SARA, (Support Assessment Referral Advocacy), dated 17 February 2022. Checked by the Tribunal. They detailed in their report to the Tribunal, the face to face assistance provided and counselling which occurred in 2017 and 2019. They referred to the abuse (physical, financial and psychological) experienced by the visa applicant.
A Statutory Declaration made by Ms Sousa Martins dated 21 February 2022, a friend which detailed previous history and current circumstances and abuse.
A Statement of support made by Ms Katrina Marylyn, long term friend detailing the relationship in its’ early stages and the subsequent deterioration.
A Statement of support made by Ms Maria De Farias, long-term friend detailing the relationship in its’ early stages and the subsequent deterioration.
A Statutory Declaration made by Ms Luana Rossi dated 21 February 2022 a long-term friend and Church associate, detailing the relationship in its’ early stages and the subsequent deterioration and abuse.

A Statement of Support made by Ms Fabiana Aparecida, a long-term friend, detailing the relationship in its’ early stages and the subsequent deterioration.
A Statement of support made by Ms Lina Paselli-Kruse, Director and visa applicant’s current employer, dated 21 February 2022.
A Statutory Declaration on form 1410 made by the visa applicant, Ms Suellem Ritila Meira De Souza, dated 22 February 2022
A Statement of support authored by the visa applicant’s sister, Ms Heid Renata de Souza dated 20 February 2022, detailing her knowledge and observation of the applicant’s relationship and subsequent deterioration into abuse.
Having considered all of the evidence before it, the Tribunal is satisfied, for the purposes of reg 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: reg 1.22.
Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for reg 1.22.
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 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
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:
·cl 801.221(6)(b) and (c) of Schedule 2 to the Regulations.
Peter Emmerton
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.

[2022] AATA 1658

24 February 2022

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