Palacios Acosta (Migration)

[2024] AATA 3692

Palacios Acosta (Migration) [2024] AATA 3692 (8 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Oscar Manuel Palacios Acosta

REPRESENTATIVE:  Mr Emete Joesika (MARN: 0100301)

CASE NUMBER:  2101325

HOME AFFAIRS REFERENCE(S):          BCC2016/567718

MEMBER:Brygyda Maiden

DATE:8 August 2024

PLACE OF DECISION:  Melbourne

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 820.221(3) of Schedule 2 to the Regulations.

Statement made on 08 August 2024 at 2:36pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – relationship had ceased –  applicant had suffered family violence committed by the sponsor – parties shared the responsibility for housework – there was some social recognition of the parties’ relationship – independent expert provided an opinion that the applicant had “suffered” the relevant family violence – decision under review remitted           

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.21, 1.22, 1.23,1.24, 1.25, Schedule 2, cls 820.211,820.221

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 Home Affairs on 22 January 2021 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2. The applicant is a 37-year-old national of Peru. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant. The primary criteria includes cl 820.221 which requires that at the time of decision the applicant is the spouse or de facto partner of their sponsor and if the relationship ceased, then certain other circumstances exist. One of these is that the applicant has experienced family violence committed by the sponsor: cl 820.221(3). The applicant is claiming that this has occurred in this case.

3. The applicant applied for review on 3 February 2021 and amongst other things attached the delegate’s decision record.  According to the decision record (and in summary) on:

   a.25 May 2018, the sponsor advised the Department that the parties’ relationship had broken down due to family violence and she wished to withdraw the sponsorship which was prior to the subclass 820 visa being decided.

   b.22 June 2018, the applicant’s then representative advised the Department that both parties had made intervention orders against each other which at that stage were yet to be determined. 

   c.22 June 2018, the applicant’s then representative advised the Department that the applicant had suffered family violence and attached the application for an Intervention Order made to the Magistrates’ Court.

   d.22 June 2018, the Magistrates’ Court granted the applicant an Interim Intervention Order.

   e.19 October 2018, the sponsor provided the Department with a copy of the Magistrates’ Court final intervention order dated 17 October 2018 made against the applicant, and evidence that the applicant’s intervention order against the sponsor had been struck out.

   f.16 November 2018, the applicant submitted the following to the Department:

   ·a copy of intervention order that was struck out by the Magistrate Court on 17 October 2018;

   ·a copy of the final intervention order made by the Magistrate Court against you and evidence that you have been found guilty of assault and charged;

   ·a report from a Psychologist Ms Karen Walker dated 1 November 2018;

   ·a completed Form 1410 dated 25 October 2018; and

   ·3 x Form 888 declarations from friends.

   On 3 December 2018 the applicant also submitted:

   ·A statutory declaration from your Psychologist Ms Karen Walker dated 30 November 2018; and

   ·A letter from Dr Hexiang Yao, Bentleigh GP Centre dated 22 November 2018.

4. The delegate found that the parties would have satisfied the requirement of being in a spouse or de facto relationship prior to the relationship ceasing.  Based on the non-judicial evidence submitted, the delegate was not satisfied that applicant suffered from family violence and sought the opinion of an independent expert. The independent expert found the applicant had not suffered the relevant family violence.  The applicant was notified by the Department of the independent expert’s opinion on 5 March 2020, and invited to comment.  The applicant’s representative made submissions (including that the independent expert had not considered certain claims and had erred), and on 3 April 2020, a part C referral was referred to the independent expert.  On 8 May 2020, the independent expert found that applicant had not suffered the relevant family violence.   On 28 October 2020, the applicant was notified of the independent expert’s opinion and invited to respond.  The applicant’s current migration agent submitted numerous documents to the Department in response and the delegate found no new evidence had been submitted to “require further re-assessment and referral to a new IE.” Ultimately the delegate decided that the applicant had not established that he had suffered family violence commitment by his sponsor, and therefore he did not satisfy cl 820.221(3) of Schedule 2 to the Regulations.

5. The applicant appeared before the Tribunal on 26 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Cynthia Cedena.  The Tribunal was assisted by an interpreter in the Spanish and English languages.  No contradictor was present. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Is the Tribunal satisfied that a spouse relationship / de facto partnership existed at the time of the visa application?

8. Despite the delegate noting that that the applicant would have satisfied the requirement of being a spouse or de facto partner of his sponsor if the relationship did not end, as this is a merits review, the Tribunal has also considered this issue.

9. The Department file BCC2016567718 (“Department file”) contains a copy of the Victorian marriage certificate which indicates that the parties’ marriage was solemnised on 11 November 2015 and registered on 5 January 2016. The Tribunal accepts that the parties were validly married.

10. After considering the documents on the Department file, the Tribunal file and the applicant’s evidence at hearing, the Tribunal has made the following findings in relation to the reg 1.15A(3) matters:

11. Financial aspects of the relationship: The applicant told the Tribunal that the parties shared a bank account. Consistent with this, the applicant submitted a letter from the Commonwealth Bank dated 21 November 2017 indicating that the parties’ joint account was opened on 11 December 2015.  The applicant stated that it was mostly him that contributed to the account as the sponsor did not work much and she only sometimes contributed to the account. The parties’ personal statement on the Department file dated 8 February 2016 at that time indicated that the applicant was unemployed and was using his own savings for daily expenses. Although the Tribunal accepts that the parties had a joint account, there only appears to be a small amount of pooling of financial resources, and therefore affords this a small amount of weight.

12. There was no evidence before the Tribunal that the parties had any joint ownership of real estate or other major assets together, no joint liabilities and no evidence that one person in the relationship owed any legal obligations in respect of each other.  In relation to the parties sharing of day-to-day household expenses, the applicant told the Tribunal that electricity (this is reflected in statements of the joint account on the Department file) and services were paid from the parties’ joint account.  The Department file contains a personal statement signed by both parties on 8 February 2016.  At that stage, it states that the applicant was unemployment and the sponsor was willing to support him until he obtained a job.  The statement suggests that the sponsor was supporting him with utility bills and he was paying for the internet bills.  There were no rent expenses as the sponsor owned the apartment.  It appears at various times in the relationship one party has had a greater share of the payment of day-to-day household expenses.  The Tribunal affords this some weight.

13. On balance, the financial aspects of the parties’ relationship provide a small amount of support for the parties being in a genuine and continuing relationship. 

14. Nature of the household: There is no evidence before the Tribunal that the parties had any children of their own or had any joint responsibility for the care and support of any children.

15. The applicant told the Tribunal that the parties lived in an apartment in A’Beckett Street, Melbourne, and prior to that, they were living in a different apartment in the same building.  Initially, they lived in a one bedroom apartment and then moved into a two bedroom apartment.  They lived together in Melbourne from 2015 to 2018.  Numerous pieces of correspondence were submitted to the Tribunal and appear on the Department file, which were sent to the parties in support of the applicant’s claims.  The Tribunal affords this some weight.

16. The applicant claimed that in relation to the sharing of the responsibility for housework, he did all the cleaning and he liked cooking (the form 888 statutory declaration on the Department file of Xiao Lin Yan dated 1 February 2016 confirms that the applicant cooked for the sponsor).  The sponsor used to keep the apartment clean and go shopping, they used to share things and it was not like they had set roles.  The parties grocery shopped together.  The Tribunal finds there is some evidence that the parties shared the responsibility for housework.

17. On balance, the nature of the household provides some support for the parties being in a genuine and continuing relationship and living together and not separately and apart on a permanent basis.

    Social aspects of the parties’ relationship

18. Witness, Cynthia Cedena, told the Tribunal that she had been friends with the applicant since 2013 or 2014 when he had lived and worked in Perth.  She had never seen any problem or violence in the applicant, or anything out of character.  He is like a brother to her, and supports her. Ms Cedena could not tell the Tribunal about the parties’ relationship as she had never met the sponsor, but stated that the applicant was dedicated to his marriage.  The Tribunal clarified that what Ms Cedena had said was that she had been friends with the applicant since 2013 or 2014 and had never met or seen the sponsor.  Ms Cedena said that she had just heard about her, she did not have a proper idea of what had occurred.  The Tribunal indicated that in that it was strange in that entire period that Ms Cedena had never met the sponsor.  Ms Cedena explained that the applicant had worked and had always worked as much as possible.  The Tribunal finds that Ms Cedena’s evidence provides some support for the persons representing themselves as being married to each other but does not provide any support for the applicant’s family violence claims against his sponsor.

19. Form 888 statutory declarations on the Department file from the parties’ friends and acquaintances indicate that the parties represent themselves as being married to each other and provide opinions about the nature of the parties’ relationship.  The Tribunal affords this some weight.

20. In respect of the basis on which the parties plan and undertake joint social activities, the applicant submitted photographs of the parties together in various locations and of the parties together with others in various social settings.  The Department file also contains photographs of the parties at various locations together and having meals with others.  Some of the form 888 statutory declarations also indicate that the parties socialised with friends after work and invited people over to their home for dinner. The Tribunal affords this some weight.

21. On balance, the social aspects of the parties’ relationship support the parties being in a genuine and continuing relationship and having a mutual commitment to a shared life.

    Nature of the persons’ commitment to each other

22. The applicant told the Tribunal that the parties were boyfriend and girlfriend for approximately two and a half years, and married for approximately two and a half years. The Tribunal affords this some weight.  Given the parties had been in a relationship for approximately five years, the Tribunal affords this some weight.  The applicant told the Tribunal that parties’ relationship ceased in in May 2018.

23. The applicant’s letter dated 1 December 2020 to the Department states that he met the sponsor in the second semester of 2013 when the parties worked in hospitality at the 4 Point Sheraton Hotel together in Perth. The applicant submitted a joint lease dated 16 June 2014 for when the parties resided in Perth.  The parties first lived together in an apartment in Perth  as girlfriend and boyfriend (some of the form 888 statutory declarations on the Department file contain consistent evidence that the parties lived together in Perth).  The applicant told the Tribunal that the sponsor purchased a property in Melbourne (to this end, a rates notice was submitted in the sponsor’s name for the A’Beckett St, Melbourne apartment issued on 28 October 2015). For a period of a year, the sponsor travelled between Melbourne and Perth and could not get used to the Melbourne weather (the Department file contains a Tigerair flight confirmation for the applicant between Perth and Melbourne and back in January 2015, from Perth to Melbourne arriving on 7 March 2015 and returning on 14 March 2015  and the applicant submitted his flight confirmation for a Tigerair flight from Melbourne to Perth on 1 August 2015 – no return was submitted). The applicant eventually moved to Melbourne, and the parties were married on 11 November 2015.  Numerous pieces of correspondence addressed to each party was submitted at the A’Beckett Street, Melbourne address.

24. The sponsor’s statement on the Department file dated 3 February 2016 states that the parties lived together in Perth form16 June 2014 until 18 October 2014 (the joint lease that indicates that the parties lived together in Perth from 16 June 2014 until 16 September 2014) when the sponsor moved to Melbourne as an apartment she had previously purchased was going to settle.  The applicant stayed in Perth due to his work and the parties booked flights to visit each other.  The applicant quit his job and moved to Melbourne to be with the applicant on 3 November 2015 and they lived together in the sponsor’s apartment. On the evidence it appears that the parties lived together until the relationship ended in May 2018.  The Tribunal finds that the parties lived together for almost three years in total.  The Tribunal affords this some weight.

25. The applicant told the Tribunal that the sponsor had provided him with emotional support when he was in Broome.  He used to hesitate to come to Melbourne because he was worried about how the parties were going to deal with that and whether it was going to work.  He was really concerned.  The sponsor told him that the parties could work it out, and everything would be alright, and that he would have better professional development in Melbourne.  The applicant told the Tribunal that he had provided the sponsor with emotional support as the parties are of a different religion.  He is Catholic and the sponsor is Buddhist. When the parties went to Wollongong he took her to a Buddhist “church” to pray.  The applicant was always stressed and sleeping late, he wanted her to exercise to feel better and used to cheer her up so she felt better.  The Tribunal accepts that there is some degree of companionship and emotional support that the parties drew from each other.

26. In relation to the parties’ joint plans for the future, the applicant wanted to have a baby but not as quickly as the sponsor did.  He wanted to work first prior to doing that.  Because the sponsor was older than the applicant, all she wanted was a baby.  The applicant was paying the mortgage and was helpful with the sponsor’s plans to purchase property because she managed to save money to invest.  The Tribunal affords this a small amount of weight.

27. On balance, the nature of the persons’ commitment to each other provides support for the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life, and living together and not separately and apart on a permanent basis.

28. When considering the evidence in its entirety, the Tribunal is satisfied that the applicant and the sponsor were spouses as defined in s 5F of the Act at the time the applicant lodged the subclass 820 visa application on 8 February 2016 until that relationship ceased which the applicant told the Tribunal was in May 2018.

29. In this case, the applicant is seeking to establish family violence within the meaning of the Regulations committed by his sponsor.

30. Under reg 1.23 of the Regulations, a person is taken to have experienced family violence 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 experienced relevant family violence or an opinion of an independent expert has been given that the alleged victim has experienced relevant family violence. Relevant family violence is defined in reg 1.21. 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).

31. In the present case the applicant is claiming to have experienced 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?

32. 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.

33. 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 which applied when the evidence was submitted to the Department).

34. A statutory declaration under reg 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: reg 1.25(2).

35. The Department file contains the applicant’s form 1410 statutory declaration for family violence claim dated 25 October 2018 which is made by the applicant, sets out the allegations of family violence and names the sponsor as the person who committed the relevant family violence.  The Tribunal is satisfied that the applicant’s statutory declaration dated 25 October 2018 complies with reg 1.25.

1. IMMI 12/116, which applied when the applicant submitted the evidence to the Department, requires at least two forms of acceptable evidence that are specified in IMMI 12/116.   The Department file contains:

   a.a letter from Dr Hexiang Yao dated 22 November 2018 who the Tribunal accepts is a registered medical practitioner[1] performing the duties of a registered medical practitioner. Dr Yao identifies the applicant and details his treatment for mental health.  No mention of family violence is made, but the treatment for mental health is consistent with family violence claim.

   b.a statutory declaration from Karen Walker, clinical psychologist dated 30 November 2018. IMMI 12/16 requires the statutory declaration to be made by a registered psychologist[2] who has treated the alleged victim while performing their duties of a psychologist.   The Tribunal is satisfied that Ms Walker is a registered psychologist.  The applicant had a number of appointments with Ms Walker in relation to “emotional distress over the breakdown of his marriage to Ms ZHANG and ensuing court matters.”  Ms Walker’s report states her opinion that the applicant was subject to family violence, details her reasons for the opinion, and the identifies the alleged perpetrator as the sponsor.

   [1] See: Australian Health Practitioner Regulation Agency - Register of practitioners (ahpra.gov.au) which indicates in the register that Dr Hexiyang Yao is registered.

   [2] Australian Health Practitioner Regulation Agency - Register of practitioners (ahpra.gov.au) indicates Ms Karen Walker was first registered as a psychologist on 2 June 2010.

2. The Tribunal is satisfied that the applicant has submitted a statutory declaration and two forms of acceptable evidence that are specified in IMMI 12/116.  The Tribunal notes that the instrument is now LIN 23/026 which commenced on 31 March 2023 and repealed IMMI 12/116.  LIN 23/026 makes clear that anything that is done under IMMI 12/116 “continues to be in effect as if it had been done under this instrument.” (See LIN 23/026 cl 7).  Therefore, the non-judicial evidence submitted by the applicant also meets LIN 23/026.

3. The applicant also submitted a statutory declaration dated 22 March 2024 of Ms Karen Walker.  Ms Walker at the time of the statutory declaration has had 40 psychological sessions with the applicant.  The declaration states that in Ms Walker’s opinion, the applicant has experienced family violence by his sponsor, including both physical and psychological and she sets out reasons for her opinion. In the Tribunal’s view, this document also complies with the requirements of LIN 23/026. 

4. The Tribunal is satisfied that 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.

5. The applicant also submitted to the Tribunal:

   a.various prescriptions, printouts pertaining to the effects of certain medication, medical certificates, the applicant’s patient and emergency treatment summary and patient notes relating to the applicant.

   b.a Magistrates’ Court interim intervention order against the sponsor dated 26 June 2018.

   c.a notice of directions hearing dated 26 June 2018 from the Magistrates’ Court.

   d.a letter from Mark Danko, family counsellor, dated 18 September 2018, from Our Kids Parenting Orders Program, indicating that he had seen the applicant “in a counselling context due to his personal circumstances and mental stress”.

   e.the applicant’s further and better particulars in relation to this application for an intervention order dated 9 October 2018.

   f.a letter from Karen Walker dated 13 October 2018 to the Melbourne Magistrate’s Court, indicating that the applicant had experienced family violence of a physical and psychological nature from the sponsor.

   g.a medical referral from Dr Hexiang Yao dated 26 October 2018 to Ms Karen Walker, which identifies the applicant and requests that the applicant be reviews under a GP Mental Health Plan as he “has recent relationship breakdown due to being accused of DV by wife, which caused his anxiety as well as financial/visa problems.” 

   h.a letter to the US Consulate General dated 21 October 2020 from Ms Karen Walker in relation to the apprehended violence order that the sponsor took out against the applicant and which the applicant breached resulting in criminal charges.  It also states that the applicant has experienced family violence of a physical and psychological nature from the sponsor.

   i.a letter from Dr Mohammad Jabbarpour dated 19 November 2020 to Harvester Private Consulting Suites Psychiatry requesting a review and opinion and mentioning the applicant’s history of “anxiety/panic disorder and related insomnia.”

   j.a character reference for the applicant from Ms Salote Streil dated 19 November 2020.

   k.a letter in support of the applicant from Jorge Caceres dated 20 November 2020.

   l.a letter from Karen Walker dated 30 November 2020.

   m.a copy of DASS 21 completed by the applicant on 14 August 2021.

   n.a referral dated 14 September 2021 from Dr Farid Yazdan to Ms Nathaly Vargas for counselling under MHCP for six sessions.

   o.a letter referral letter dated 27 November 2021 from Dr Navneet Sandhu to Ms Karen Walker, thanking Ms Walker for seeing the applicant “under a MICP.  I understand you are already well versed in Oscar’s presentation of anxiety & depression.”

   p.a letter from Dr Edmond Lobaza (periodontist) to Dr Izzat Midinov dated 30 November 2021.

   q.a referral from Dr Farid Yazdan dated 16 November 2022 to Ms Karen Walker in relation to counselling for the applicant and his mental health care plan, for a total of six session.

   r.a report from Karen Walker dated 20 March 2024 indicating that the applicant has experienced physical and psychological family violence during his marriage to the sponsor.

   s.submission from the representative dated 25 November 2020 (addressed to the Department) and 25 March 2024 (addressed to the Tribunal).

   Has the applicant experienced family violence?

6. The applicant told the Tribunal that the first time the sponsor caused him to fear for or be reasonably apprehensive about his wellbeing or safety was when the parties were in Perth.  He was having a drink with a mutual female friend after work.  He returned home to the parties’ apartment at about 10:30pm with that female friend.  The sponsor woke up in a bad mood and slapped him because she was jealous.  The sponsor asked why he had brought the friend to their place, and the applicant told her they were just drinking and the friend had wanted to say hello to the sponsor.  The applicant did not report the slapping to the police, he thought it was a simple argument, and would not happen again.  This does not in the Tribunal’s view appear to be consistent with the sponsor fearing for or being reasonably apprehensive for his fear or safety. 

7. The applicant also told the Tribunal that:

   a.the sponsor had attacked him with a knife or meat cleaver.  The parties had the same argument in relation to having a baby.  He could not be intimate with the sponsor anymore, he was worried all the time, about what she would do and what would happen.  Although the applicant told the Tribunal that he had slept in his car, he did not report the sponsor’s claimed attack to the police. He told the Tribunal that he did not realise that there was family violence against men.  He thought the could just talk about things, fix things, and he was very young he was under 28 and loved the sponsor.

   b.the sponsor had wanted a baby – which at that stage the applicant did not want. She was concerned that due to her age that she could not have a child and it was all she could think about. She had attempted to manipulate him, and threatened to withdraw her sponsorship of him.  Things deteriorated and the sponsor started kicking him out of the house, or giving him problems such that he used to return home from work late.  He did not know what to do and he did not at that stage recognise what was occurring to him as family violence.  He did not know how to manage the problem with the sponsor. He wanted the best for the sponsor and himself, and was scared that she could do all the things she had been telling him all the time – call the police and kick him out of the country if they did not have a baby.  It was a nightmare.  He had to sleep in his car, go to bars to drink to spend the night, slept in the park, and in the library because he did not want to return home.  He smoked a lot, lacked appetite, was stressed, had panic attacks and nightmares. 

8. The applicant told the Tribunal that the parties had an argument in May 2018 (when the parties’ relationship ended), and she took the applicant to court for family violence. He was told to plead guilty (the Tribunal indicated that the court does not tell people what to plead).  He was found guilty and fined.  The Tribunal indicated that for him to have been fined, that something must have occurred.  The applicant stated that he was sleeping after work, and the applicant began to hit and kick him whilst he was asleep.  He was surprised, awoke in a bad mood and began yelling.  She told him to leave, and that she would withdraw the sponsorship, which she told him many times before because he did not wish to have a baby with her.  The Tribunal indicated that it was unusual to be woken from sleep without a prior interaction, and asked the applicant if he wished to tell the Tribunal about that.  The applicant told the Tribunal that he was asleep, when he woke up he was upset, angry and he started yelling.  The sponsor had claimed that he had hit her, but he claims not to have.  She went to the doctor, but they could not find any damage on her body.  She used people as witnesses against him.  He was unable to see the people without his contact lenses, he thought he was going to be attacked, and then she used the words of the witnesses in court (against him).  They had threatened to call the police, and it was two people against him. That is how he came to be guilty, fined, and he did not do anything wrong.  He was yelling and he awaited the police’s arrival to provide his declaration, but he did not hit anyone.    The Tribunal discussed the applicant’s oral evidence that a court and found him guilty and fined him.  The applicant indicated that he had an AVO against him and he could not approach the sponsor.  The Tribunal has concerns about the applicant’s recollection of events given the circumstances were witnessed by witnesses seemingly in support of the sponsor.

9. The Tribunal was also handed a Magistrates’ Court interim intervention order dated 26 June 2018, which the applicant indicated was issued against the sponsor.  It was initially successful and then it was withdrawn. He was not sure why it was withdrawn against the sponsor as she was aggressive to him on many occasions.  It seems unlikely to the Tribunal that the applicant would not know why his interim intervention order against the sponsor was withdrawn.

10. The applicant told the Tribunal that his sponsor had never been convicted of physical violence against him.  He never said anything to the police as he did not want to betray her.

11. The Tribunal discussed the letter that the applicant submitted to the Tribunal dated 21 October 2022 from the applicant’s psychologist which indicated that the sponsor had taken out an apprehended violence order against him that the applicant had breached.  The applicant told the Tribunal it was a picture of a handwave.  It was a mistake from the beginning.  It was not aggressive, he used to love her, though he could fix things but the sponsor used it against him and fined him $200.  That was the first fine.

12. At the hearing, the Tribunal was handed a copy of the applicant’s national police certificate dated 20 January 2020.  The disclosable court outcomes recorded against the applicant are as follows all from the Melbourne Magistrates’ Court:

    a.11 April 2019, the applicant contravened a family violence interim intervention order, there were two charges.  On both charges the applicant was convicted and fined $1,500.

    b.17 October 2018, the applicant was convicted and fined $500 for unlawful assault.

    c.10 July 2018, the applicant was charged with contravening a family violence safety notice, the result was without conviction.  “Adjourned to be of good behaviour to 08/07/2019.  To pay $200 to the court fund.”

13. The Tribunal discussed the applicant’s convictions and asked the applicant whether he wanted to say anything about that.  The applicant explained to the Tribunal that one of the instances related to him mistakenly sending a text message to the sponsor that was not meant for her.  It was in Peruvian slang, meant for a friend of his, and said “Hey bro, what’s up?”.  The other occasion was that the applicant had the flu, called for pizza and accidentally phoned the sponsor. Her phone number was still in his favourite contacts. When he realised what had occurred, he stopped it, changed his phone number and mobile phone device.  The applicant’s account appears consistent with the statement from Timothy Richardson, Constable of Police dated 24 October 2018 which was handed up to the Tribunal at the hearing.  That statement indicates that the sponsor reported a contravention of the final family violence order against the sponsor, in that she had received a phone call from the applicant on 5 October 2018 but had not noticed it as she had been out to dinner with friends. She provided a screen shot from her phone indicating that a call had been made to her by the sponsor on that day.  The sponsor also stated that the sponsor had sent her a WhatsApp message in Peruvian which translated to “Hey, what’s up bro”.  A screen shot of that was sighted by the constable.  The constable also indicated that he had spoken to the applicant and the applicant was aware of the two incidents and had indicated that each was accidental.

    Referral to the independent expert

14. After considering the Department file, the applicant’s submissions to the Tribunal and the oral evidence at the hearing, the Tribunal was not satisfied for the purposes of reg 1.23 that the applicant has experienced relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert on 10 May 2024.

15. On 26 June 2024 the independent expert provided an opinion that the applicant had “suffered” the relevant family violence, in particular, psychological abuse. According to the independent expert, that was such as to cause the applicant to reasonably fear for or be reasonably apprehensive about his own wellbeing or safety.

16. Under reg 1.23, the Tribunal is required to take as correct an independent expert’s opinion, properly made. The Tribunal is satisfied that the opinion 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. Accordingly, the Tribunal finds that the applicant is taken to have experienced family violence committed by the sponsor for the purposes of reg 1.22.

17. As the relationship between the applicant and sponsor has ceased, and the applicant has experienced relevant family violence committed by the sponsor, the applicant meets the requirements of cl 820.221(3) of Schedule 2 to 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

18. 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 820.221(3) of Schedule 2 to the Regulations.

    Brygyda Maiden
    Member