Naidu (Migration)

[2018] AATA 3709

Naidu (Migration) [2018] AATA 3709 (9 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Komal Partika Naidu

CASE NUMBER:  1609985

DIBP REFERENCE(S):  CLF2013/2351 OSF2013/094832

MEMBER:Nicholas McGowan

DATE:9 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 09 August 2018 at 11:07am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Ceased relationship – family violence claims – independent expert opinion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, Schedule 2 cl 100.221

STATEMENT OF DECISION AND REASONS

REVIEW

1. This is an application for review of a decision by a delegate of the Minister on 21 June 2016 to refuse to grant the applicant a partner visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 September 2013 on the basis the applicant’s relationship with her sponsor. The applicant appeared before this Tribunal in Melbourne to give evidence. The applicant was represented.

3. The Tribunal has before it the Department’s file relating to the applicant; its own file; and copy of the Department’s decision provided by the applicant to this Tribunal.

   ISSUE

4. In the present case the applicant claims the relationship with her sponsor has ceased, and she has been the victim of family violence.

   RELEVANT LAW

5. Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature. Under r.1.22 a reference to a person having suffered or committed family violence is a reference to a person being taken under r.1.23 to have suffered family violence.

   EVIDENCE AND FINDINGS

6. According to the Department’s decision record – which the applicant provided the Tribunal – the sponsor advised the Department on 27 August 2015 that he wished to withdraw his sponsorship of the applicant as their relationship had broken-down.

7. The applicant advised the Department of Immigration on 22 October 2015 that her relationship with her sponsor had ceased. At that time, the applicant also claimed she had suffered family violence perpetrated by him.

8. During the hearing the Tribunal pointed out to the applicant the requirement that she continue to be sponsored, and if not, the limited circumstances in which she may continue to be considered for the grant of the partner visa.

9. The evidence before the Tribunal is that the applicant and sponsor had no children of their relationship, and the sponsor is not deceased.

10. In this case, as the applicant has made a claim of having suffered family violence perpetrated by her sponsor, the Tribunal must consider it according to law.

    Has a claim of family violence been made under the regulations?

11. On the basis of the non-judicial evidence provided to the Department previously, the applicant was determined to have not suffered relevant family violence. The Tribunal considered this.

12. The applicant was previously referred to an Independent Expert (by the Department) on 15 January 2016. That Expert found the applicant had not suffered relevant family violence as defined under clause 1.21 of the regulations. The applicant was advised by the Department of the Expert’s opinion on 5 April 2016 and provided the opportunity to respond.

13. In May and June of 2016 the applicant provided the Department with a copy of an Application and Summons for an Intervention Order dated 2 May 2016, and a Final Intervention Order dated 31 May 2016. This Tribunal considered both documents dated May 2 and May 31 (2016). Both documents were issued after the applicant’s and sponsor’s relationship had broken-down. The Tribunal notes the applicant’s own remarks in the Application and Summons for an Intervention order in which she observes: “At the time of our separation I applied for an intervention order, however it was refused by the court.” Accordingly, based on these facts and the evidence on hand, the Tribunal is unable to rely upon a judicially determined claim of the applicant having suffered family violence under the law. 

14. Nonetheless, this Tribunal then sought the opinion of a second independent expert, about whether the alleged victim has suffered family violence: r.1.23(10)(c).

15. Under law, this Tribunal must take as correct the opinion of the expert as to whether the alleged victim has suffered domestic violence: r.1.23(10)(c), and if the opinion is that the alleged victim has suffered relevant domestic violence, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence for the purposes of the relevant criterion: r.1.23.

16. This Tribunal advised the applicant that it had sought the opinion of an independent expert (second and separate Expert from the first) about whether the alleged victim has suffered family violence.

17. The Tribunal received as assessment report from that independent expert, Dr Suzanne Vidler, in which Dr Vidler states (T1, folios 54-68):

    “In my opinion, relevant family violence that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own personal wellbeing or safety has not occurred.”

18. The Tribunal provided that information (on the Tribunal file) to the applicant for her comment in accordance with s. 359A of the Act. The applicant did not respond to that information.

19. The Tribunal had waited a considerable period of time to allow the applicant ever opportunity to respond.

20. The Tribunal received a letter from the applicant’s agent on 19 July, though the applicant provided no further information and presented no further arguments or evidence.

    FINDINGS

21. The Tribunal is satisfied that the opinion of the independent expert 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.

22. Under r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.

23. Accordingly, the Tribunal has no alternative but to find that the applicant is not taken to have suffered family violence committed by the sponsor.

24. The Tribunal further finds that the applicant does not meet any of the alternative criteria for the grant of the visa In particular, there is no evidence that the sponsor has died. There is no evidence that there are any orders in relation to any children. The Tribunal is not satisfied the applicant meets

25. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet any of the alternate requirements for the grant of the visa: cl. 100.221

26. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria.

27. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    DECISION

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

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