Nugrohowati (Migration) - [2023] AATA 2856

Nugrohowati (Migration) [2023] AATA 2856 (1 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Wenny Nugrohowati
REPRESENTATIVE:  Mr Gregory James Finlayson
CASE NUMBER:  2202673
HOME AFFAIRS REFERENCE(S):          BCC2016/1902828
MEMBER:Kate Millar
DATE:1 August 2023
PLACE OF DECISION:  Adelaide
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 820.211(2) of Schedule 2 to the Regulations; and
·cl 820.221(3) of Schedule 2 to the Regulations

Statement made on 01 August 2023 at 5:09pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – court remittal – relationship had broken down – claimed family violence – applicant and the sponsor were in a defacto partner relationship – verbal and emotional abuse, financial abuse, intimidation and social isolation – applicant has suffered relevant family violence as defined in r.1.22 of the Regulations – family violence committed by the sponsor – decision under review remitted
LEGISLATION
Migration Act 1958, ss, 5CB, 65
Migration Regulations 1994, rr 1.09,1.21, 1.23, 1.25, Schedule 2, cls 820.211, 820.221
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Ms Nugrohowati is a citizen of Indonesia who came to Australia on 9 May 2016 on a tourist visa, and applied for a Partner (Temporary)(Class UK) (Subclass 820) visa and a Partner (Residence)(Class BS) (Subclass801) visas on 31 May 2016 on the basis of her relationship with Dr Glyn Edwards, who is an Australian citizen.
Her applications were refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 30 October 2017 under s 65 of the Migration Act 1958 (Cth) (the Act).
The delegate refused her application for a Subclass 820 visa because the delegate was not satisfied she was the defacto partner of Dr Edwards as defined in the Act. The Subclass 801 visa was refused as Ms Nugrohowati did not hold a Subclass 820 visa, which is required for the grant of this visa.
On 18 January 2018, Dr Edwards wrote to the Department withdrawing his sponsorship of Ms Nugrohowati. The day before he withdrew his sponsorship, Ms Nugrohowati swore a statutory declaration stating she had suffered family violence from Dr Edwards.
Ms Nugrohowati applied to the Tribunal for a review of the decision to refuse her visa. The Tribunal (differently constituted) affirmed the decision, finding the relationship had broken down, and Ms Nugrohowati had claimed family violence but had not suffered family violence. In coming to this conclusion, the Tribunal relied on the opinion of an independent expert.
Ms Nugrohowati appealed to the Federal Circuit and Family Court, which remitted the applications for the visas to the Tribunal for reconsideration, finding that the Independent Expert has not applied the correct test in concluding Ms Nugrohowati had not suffered relevant family violence. This is the reconsideration of this matter.
Ms Nugrohowati appeared before the Tribunal on 12 April 2023 to give evidence and present arguments and was represented in relation to the review. The Tribunal also received oral evidence from her employer, Mr Kevin Thomas.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
Ms Nugrohowati met Dr Edwards in Indonesia in 2010 where she described their relationship as “good friends” when he would come to her shop. She said they became closer, and she travelled with him to Malaysia so that he could obtain medical treatment. While they were in Malaysia, she said they committed to an ongoing relationship. As it was difficult for her to obtain work in Malaysia they returned to Indonesia where Ms Nugrohowati said they lived as husband and wife.
They purchased property business and Dr Edwards assisted her to email foreigners for investment in property as his English was better. They bought houses and retained some for investments for each of them. Ms Nugrohowati said Dr Edwards had an alcohol problem and was frequently in hospital and she supported him by going to the hospital.
As Dr Edwards’ health deteriorated, he wanted to return to Australia for medical treatment and so she had to make arrangements for her business and leave Indonesia. They came to Australia in May 2016 and rented a property in Darwin. Ms Nugrohowati said she applied for a spouse visa and obtained work rights as Dr Edwards’ pension was insufficient to meet their financial needs.
Ms Nugrohowati said Dr Edwards’ alcohol use increase and he was frequently in hospital. His care needs increased and she needed to assist him with personal care.
In April 2017 following an angiogram his health improved, and he wanted to take over the property in Battam and said unless she gave it to him, he would not support her visa application. He wanted them to move to Port Macquarie when they had a tenancy in Darwin, and she had work there.
When Dr Edwards had an assessment with the Aged Care Assessment Team she spoke to the assessor about the relationship, and the assessor referred her to a social worker on 27 September 2017, who then referred her to the domestic violence legal service.
On 30 October 2017, Ms Nugrohowati’s application for a visa was refused.
On 19 February 2018, Dr Edwards withdrew his sponsorship of Ms Nugrohowati. Ms Nugrohowati said she was not aware he had withdrawn his sponsorship until the previous hearing of this matter. Ms Nugrohowati said this was around the time Dr Edwards moved to Port Macquarie and she remained in Darwin.
In December 2018, Ms Nugrohowati went to Port Macquarie to care for Dr Edwards because he asked for her to come and care for him and paid for her ticket.
A statutory declaration from psychologist Mr Lamesch including an opinion that Ms Nugrohowati had suffered family violence from Dr Edwards was sent in error to Dr Edwards. Dr Edwards provided a statement in response to this statutory declaration denying many of the allegations in the statutory declaration. He claims Ms Nugrohowati has obtained ownership in property in Indonesia largely funded by him and had refused to transfer properties into his name.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the time Ms Nugrohowati applied for the visa, 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).
To be granted the visa, Ms Nugrohowati must satisfy the primary criteria in Part 820. The primary criteria include cl 820.211 and 820.221. These provisions require that at the time of application and the time of the decision, the applicant must be the spouse or de facto partner of the sponsor, unless the relationship has ceased, and certain circumstances exist.
These circumstances 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.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.211 because the delegate was not satisfied Ms Nugrohowati was the defacto spouse of Dr Edwards
Was Ms Nugrohowati the defacto spouse of Dr Edwards?
In considering if she has suffered family violence, the Tribunal must first be satisfied she was in a defacto relationship before it ceased.
The definition of de facto partner is given in section 5CB of the Act. A person is in a de facto relationship with another person to whom they are not married if:
·they have a mutual commitment to a shared life to the exclusion of others;
·the relationship is genuine and continuing;
·the couple live together, or do not live separately and apart on a permanent basis; and
·the couple are not related by family.[1]
[1] Migration Act 1958 (Cth), section 5CB(2).
There is nothing to suggest that Ms Nugrohowati and Dr Edwards are related.
In determining whether Ms Nugrohowati and Dr Edwards were in a de facto relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3) of the Regulations.
Regulation 1.09A factors
The Regulations set out factors that must be considered in forming an opinion about whether the parties are in a de facto relationship. Each of these factors is essentially a question that is to be answered (He v MIBP [2017] FCAFC 206).
The first is the financial aspects of the relationship which include any joint ownership of real estate or other major assets; any joint liabilities; the extent of a pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; and the basis of any sharing of day-to-day household expenses.
Ms Nugrohowati and Dr Edwards had joint ownership of two properties in Indonesia. She said, and the Tribunal accepts, that she paid for their living expenses in Indonesia with occasional assistance form Mr Edward. Dr Edwards declared himself as partnered to Centrelink. Dr Edwards states he paid for renovations to properties held in Ms Nugrohowati’s name. They held a joint lease on a property in Darwin. A lease on another property shows they each paid half of the bond.
The second is the nature of the household which includes any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework. The parties do not have children of the relationship, and Dr Edwards’ children were adults during the relationship. They have lived together in Indonesia, Malaysia, and Australia. Ms Nugrohowati undertook much of the household duties due to Dr Edwards’ ill-health.
The third is the social aspects of the relationship which include: whether the persons represent themselves to other people as being in a de facto relationship with each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake social activities. At the previous hearing, witnesses appeared who attested to the genuineness of the relationship. The relationship was acknowledged by Dr Edwards’ children and Ms Nugrohowati’s son. Photographs were provided at various times of Ms Nugrohowati and Dr Edwards with family members in Indonesia.
The fourth is the nature of commitment and includes; the duration of the relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term. A letter from the Royal Darwin Hospital 21 December 2017 confirms Ms Nugrohowati was identified by Dr Edwards as his next of kin. The Tribunal accepts that the parties lived together from at least 2011 until the latter part of 2017 and the relationship was ongoing in this time. The Tribunal is satisfied that during this period they provided each other companionship and emotional support, and at that time they saw the relationship as long term.
Based on the evidence before it, the Tribunal is satisfied the applicant and the sponsor were in a defacto partner relationship and that this relationship has ceased. The Tribunal finds the relationship ceased when Dr Edwards relocated to Port Macquarie in February 2018.
Gas Ms Nugrohowati suffered 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. 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 evidence in accordance with r.1.24 is provided. This is a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes (see LIN23/026).
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).
Ms Nugrohowati provided a statutory declaration dated 30 January 2018 which sets out the allegations of family violence, the name of the person alleged to have committed the family violence. This statutory declaration meets the requirements of r.1.25 of the Regulations.
Ms Nugrohowati has provided a statutory declaration from Ms Dana Cartmill dated 17 January 2018 and a letter dated 6 April 2023. These set out that Ms Nugrohowati has made a claim of family violence, that her opinion is that Ms Nugrohowati has suffered family violence. Ms Cartmill identifies the alleged perpetrator. This meets the requirements of an item of evidence specified in LIN23/026 for he purposes of r.1.24 of the Regulations.
An unsworn statutory declaration was provided from Mr Jay Lamesch who is a registered psychologist. A statutory declaration from Mr Lamech dated 25 March 2023 states he stands by his previous report and his observation of physical abuse from Dr Edwards having a physical effect. The report states he has seen Ms Nugrohowati on four occasions after referral from her general practitioner. The report details verbal abuse and threats surrounding the transfer of property in Indonesia. As these documents state Ms Nugrohowati has made a claim of family violence, expresses the opinion she has suffered family violence and identifies the alleged perpetrator, this also meets the requirements of LIN23/026 and therefore the requirements of r.1.24 of the Regulations.
As a statutory declaration in accordance with r.1.25 has been provided, together with the number and types of evidence specified in LIM23/026 for the purposes of r.1.24, Ms Nugrohowati has made a valid claim of family violence under r.1.23 of the Regulations.
Has the applicant suffered family violence?
The term “relevant family violence” as it applies in this case is defined in r.1.21 of the Regulations as conduct, whether actual or threatened, towards the alleged victim that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing and safety.
Judge Young in Nugrohowati v Minister for Immigration. Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 125 at [74] found that the Independent Expert failed to apply the legal test for family violence or asked herself the wrong question about the existence of conduct by the sponsor. Judge Young found verbal abuse and denigration, sometimes associated with threats about sponsorship should have been regarded as conduct for the purposes of the test (at [67]). Judge Young states that SMS messages from the sponsor expressly state his intention to use the threat of sponsorship withdrawal or visa withdrawal to pressure Ms Nugrohowati to transfer property in Indonesia to him (at [20]), and that this is arguably blackmail or extortion under s.228 of the Northern Territory Criminal Code (at [21]).
Judge Young found that the conduct of Dr Edwards threatening to withdraw sponsorship unless Ms Nugrohowati transferred property to him should have been regarded as relevant conduct for determining if she had suffered family violence. Judge Young further considered that if this conduct had been considered in determining whether the conduct caused Ms Nugrohowati to reasonably fear for or be apprehensive about be reasonably apprehensive about her own wellbeing and safety the outcome may have been different and remitted the application for reconsideration.
In addition to the evidence from a social worker and registered psychologist, Ms Nugrohowati provided a mental health care plan from her general practitioner dated 17 November 2017. The mental health care plan attached to the report states Ms Nugrohowati feels Dr Edwards is blackmailing her and that if she does not do housework he threatens to cancel her visa and has asked for a unit in Ms Nugrohowati’s name to be signed over to him in exchange for the visa.
The referral to Ms Catrill from the ACAT assessor is dated 27 September 2017, which is before the relationship ceased. In the referral the assessor reports that Dr Edwards is verbally undermining and very sarcastic, but that she is not afraid of physical violence because of his poor mobility. It reports Ms Nugrohowati as saying Dr Edwards had been calling her a gold digger and refusing to support her getting a visa in Australia.
The report of Ms Catrill is that Ms Nugrohowati disclosed verbal and emotional abuse, financial abuse, intimidation and social isolation.
On referral to the Independent Expert in the previous matter, the Independent Expert found that Dr Edwards’ conduct did not cause her to fear for or be reasonably apprehensive about her wellbeing or safety.
Ms Nugrohowati told the Tribunal she was afraid of Dr Edwards and did not want to face hm because he does not respect her and calls her names, looks down on her. She said he would make her miserable if he did not get what he wanted and would swear at her and tell he she was in his control and her visa was “at his fingertips. She said she had bad dreams and was scared of coming home because he called her names. She slept at work on two occasions because she did not want to return home.
Ms Nugrohowati provided SMS messages, which she said she photographed while Dr Edwards was in hospital, with comments from Dr Edwards such as “Let her sweat and give me more”, and “The visa is the bargaining chip.”
Mr Thomas, who provide a statement and appeared before the Tribunal said at the time Ms Nugrohowati was in a relationship with Dr Edwards, she told him that Dr Edwards was demanding, calling her at work and ordering her to go to the bottle shop or buy food. If she objected, he would verbally abuse her and threaten to send her back to Indonesia. He said Dr Edwards demanded money for signing a form so she could get a mobile phone account.
The Tribunal is satisfied that Dr Edwards’ conduct towards Ms Nugrohowati caused her to reasonably fear for, or to be reasonably apprehensive about, her own wellbeing and safety, and that she has suffered relevant family violence as defined in r.1.22 of the Regulations.
As the relationship between the applicant and sponsor has ceased, and she has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl.820.211(2) and cl.820.221(3) of Schedule 2 of the Regulations. 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 (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:
·cl 820.211(2) of Schedule 2 to the Regulations; and
·cl 820.221(3) of Schedule 2 to the Regulations.
Kate Millar
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.