PHAM (Migration)

[2022] AATA 2903

PHAM (Migration) [2022] AATA 2903 (5 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Kim Tuyen Pham

REPRESENTATIVE:  Dr Tung-Bao Ngo (MARN: 0006620)

CASE NUMBER:  1819219

HOME AFFAIRS REFERENCE(S):          CLF2013/11829 CLF2013/200824

MEMBER:M Edgoose

DATE OF ORAL DECISION:  5 July 2022

DATE OF WRITTEN STATEMENT:         6 July 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 06 July 2022 at 1:26pm

CATCHWORDS

MIGRATION – Partner (Resident) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased – family violence claims – non-judicially determined claim – invalid statutory declaration – applicant departed Australia before claimed statutory declaration – family violence claim not established – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.21, 1.23, 1.24, 1.25; Schedule 2, cl 801.221

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 21 June 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 21 August 2013 on the basis of her relationship with her sponsor, Mr Tuan Minh Nguyen. 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).

3. 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.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 801.221(2).

5. The applicant appeared before the Tribunal on 5 July 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, the applicant claims the relationship with Mr Tuan Minh Nguyen the visa sponsor has ceased, and she has been the victim of family violence.

9. 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).

10. In the present case the applicant is seeking to 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?

11. 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.

12. 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).

13. 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). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).

14. On 23 June 2022 the applicant’s representative submitted to the Tribunal several submissions in relation to this matter. Within these submissions was a Form 1410 Statutory declaration for family violence claim that was signed and dated by the applicant and representative. At the hearing on 5 July 2022 the Tribunal asked the applicant a range of questions in relation to the statutory declaration.

15. The Tribunal asked the applicant who had completed the statutory declaration. The applicant responded that she had completed the statutory declaration. The Tribunal asked the applicant if she had had any help in completing the statutory declaration. The applicant responded yes and that her representative Dr Ngo had helped her.

16. The Tribunal asked the applicant that given the hearing was being held with the assistance of an accredited Vietnamese interpreter and that the statutory declaration had been completed in English whether she had originally completed the form in Vietnamese and her answers were subsequently translated into English. The applicant responded to the Tribunal that she had initially completed the statutory declaration in Vietnamese and that it had been translated into English by Dr Ngo, her representative. The applicant further mentioned that basically she was answering the questions in Vietnamese and Dr Ngo was translating her answers into English. The concern for the Tribunal is that the answers in Vietnamese by the applicant were translated by Dr Ngo, her representative, and not by an independent accredited translator. Given this the Tribunal places limited weight on the content of the statutory declaration.

17. The Tribunal asked the applicant if she had signed the statutory declaration in Abbotsford on 10 October 2021. The applicant responded yes.

18. The Tribunal asked the applicant if the statutory declaration had been signed before Dr Ngo her representative on 10 October 2021. The applicant responded yes.

19. Adopting the procedure in s 359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of her Movement Records. The Tribunal explained to the applicant that the Movement Records are a record of her international movements to and from Australia and that these records do not show her movement in and out of countries other than Australia. The Tribunal further explained that, according to the Movement Records the applicant departed Australia on 30 March 2021 and did not return until 7 March 2022. The Tribunal informed the applicant she had stated that on 10 October 2021 she had completed a Form 1410 – Statutory declaration for family violence claim that had been signed by herself in Abbotsford, a suburb in Melbourne, Australia, before her representative. The Tribunal further stated to the applicant that her representative Dr Ngo had signed, stamped and placed his qualification and phone number on the statutory declaration. The Tribunal explained to the applicant why this information was relevant to the review. It explained to the applicant the consequences of the Tribunal relying on the information. The Tribunal confirmed with the applicant that she understood the information and how the information was relevant to the review process. The Tribunal advised her that she could comment on or respond to or seek additional time to comment on or respond to the information. The applicant did not request additional time be granted to her, and she chose to respond at the hearing.

20. The applicant informed the Tribunal that she was in Vietnam at the time due to Covid and was not able to return to Australia. The applicant told the Tribunal that she completed the statutory declaration over FaceTime with the representative. Given that the applicant stated to the Tribunal that she was in Vietnam at the time of the statutory declaration being made and was not in Australia in the suburb of Abbotsford where the statutory declaration was declared the Tribunal informed the applicant that it considers the statutory declaration to be invalid. The Tribunal has no evidence before it that the statutory declaration was completed over FaceTime. Dr Ngo, the applicant’s representative, told the Tribunal that he claims to have called the applicant to complete the statutory declaration and that he verified her signature through video. The Tribunal finds Dr Ngo’s comments to the Tribunal implausible. Given this the Tribunal places no weight on the statutory declaration by the applicant and therefore finds that an invalid claim for family violence has been made.

21. Therefore, the evidence presented does not meet the requirements of reg 1.24. As such, a non-judicially determined claim of family violence has not been made under reg 1.23.

22. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl 801.221(6)(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

23. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    M Edgoose
    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.