Mohsin (Migration)

[2021] AATA 3551

Mohsin (Migration) [2021] AATA 3551 (2 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Essa Mohsin

CASE NUMBER:  2002468

DIBP REFERENCE(S):  OSF2013/031956

MEMBER:Kira Raif

DATE:2 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

Statement made on 02 September 2021 at 10:34am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Federal Circuit Court remittal – relationship ceased – non-judicially determined claim of family violence – applicant’s and psychologist’s declarations and GP’s report – financial and physical abuse –protection order issued to spouse against applicant – opinion of independent expert – no substantive response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25, Schedule 2, cl 100.221(4)(b), (c)(i)

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 26 August 2015 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Pakistan. The applicant applied for the visa on 28 October 2013 on the basis of his relationship with his sponsor. In 2014 the sponsor informed the Department that the relationship had ended. The applicant was given the opportunity to comment on that information and stated that he had been subjected to family violence. The delegate did not accept that claim and found that the applicant did not meet cl.100.221. The applicant sought review of the delegate’s decision.

3. In March 2017 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of that decision and in February 2020 the Court remitted the matter to the Tribunal for reconsideration.

4. On 8 March 2021 the Tribunal wrote to the applicant informing him that the hearing would be scheduled for 30 March 2021 and a formal invitation to that hearing was subsequently sent to the applicant. On 12 March 2021 the applicant informed the Tribunal that  he was presently overseas but was ‘happy to’ participate in the hearing on 30 March 2021. The applicant did not appear at the scheduled hearing.  The Tribunal invited the applicant to attend another hearing. The applicant appeared before the Tribunal on 14 April 2021 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. Relevantly to this matter the primary criteria include cl.100.221 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.100.221(4)(b), (c)(i). The applicant claims this occurred in this case.

7. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and he has been the victim of family violence. 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.

8. 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?

9. 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.

10. 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).

11. The applicant presented to the delegate his own declaration and two reports from GPs. The applicant presented to the first Tribunal a declaration from a psychologist. 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?

12. In oral evidence to the Tribunal, the applicant stated that after his came to Australia, his wife demanded that he should provide financial support to her and not send any money to his family in Pakistan. The applicant stated that his wife degraded him in front of the family and others and she eventually started getting violent towards him, pulling his hair, tearing his t-shirts, throwing his food. The applicant stated that this happened almost daily. He did not tell anyone about it because it would not have been acceptable in the community.

13. With respect to the Protection order, the applicant stated that he did not know what his wife had reported to the police but he did not do anything and does not know what information was issued. The Tribunal does not accept that evidence as the applicant concedes that he did attend the court hearing and had the opportunity to present his case before the Protection order was issued. The applicant claims he was new to the country and did not understand the system and did not know what the restriction orders meant and did not know what to do. Again, the Tribunal is of the view that when going through the system, the applicant would have been explained the process and the meaning of the Protection order and the Tribunal does not accept that the applicant simply accepted the Protection order without any understanding of it. With respect to the allegations made by his spouse, the applicant told the Tribunal that he had provided evidence, including messages to his number, the police and psychologist’s reports and other evidence that  he was the victim of the family violence.

14. The Tribunal is mindful that two Independent Experts in the past had formed the view that the applicant had not suffered family violence. Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of r.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 17 August 2021 an Independent Expert provided an opinion that the applicant had not suffered relevant family violence. The Tribunal wrote to the applicant pursuant to s. 359A of the Act inviting his comments on that information. The applicant replied on 2 September 2021 by stating that he would not provide further comments as he was unable to contact his representative due to being overseas. The applicant has not explained why his location outside of Australia prevented him from being able to contact his representative by electronic means, as the applicant appeared to have been able to do so in the past and he had also been able to participate in the Tribunal hearing while overseas. The Tribunal is mindful that the applicant had not requested further time to provide his comments or response and has not indicated that he wished to provide any additional comments. In these circumstances, the Tribunal has decided to proceed on the basis of the material before it.

15. The Tribunal notes that the applicant has not raised any concerns about the validity of the IE assessment. Having reviewed the IE report, the Tribunal is satisfied the opinion is valid and 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 r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.

16. Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor, for r.1.22. The Tribunal finds that  the applicant has not suffered relevant family violence and he does not meet cl. 100.221(4)(b) and (c). The applicant’s evidence to the Tribunal is that his relationship with the sponsor has ended and the Tribunal is not satisfied on the basis of that evidence that at the time of this decision the applicant is the spouse of the sponsor.  There is nothing to suggest the applicant meets any of the other alternative criteria for visa grant. The Tribunal is not satisfied on the evidence before it that  the applicant meets cl. 100.221.

    Conclusion

17. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.100.221(4)(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

18. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

    Kira Raif
    Senior Member