Puri (Migration)

[2020] AATA 3264

Puri (Migration) [2020] AATA 3264 (6 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rupesh Puri

CASE NUMBER:  1920193

DIBP REFERENCE(S):  CLF2013/51459

MEMBER:Russell Matheson

DATE:6 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

·cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Statement made on 06 May 2020 at 1:50pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Federal Circuit Court remittal – relationship ceased – non-judicially determined claim of family violence – verbal abuse and insults – threatened with violence – economic abuse – independent expert’s (IE) opinion – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 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 Immigration on 4 November 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 32-year-old male national of Nepal. He appeared before the Tribunal on 26 February 2020 to give evidence and present arguments. 

3. The applicant was not represented in relation to the review by his registered migration agent.

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

   Background

5. The previous decision made by the Tribunal on 29 June 2018 was remitted by consent by the Federal Circuit Court of Australia (FCCA) because the Minister conceded that the Tribunal fell into jurisdictional error on the basis that the Tribunal failed to comply with s.360(1) of the Act. The Tribunal did not invite the applicant to attend a further hearing to give evidence and present arguments after receiving an independent expert’s (IE) report dated 24 April 2018 (the IE opinion). The IE opinion was a new opinion based upon different evidence that, if formed according to the requirements of the legislation, the Tribunal was required to accept as correct.

   Relevant law

6. Relevantly to this matter the primary criteria include cl.801.221 of Schedule 2 to the Migration Regulations 1994 (the regulations) 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.

7. Based on the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

8. 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 of the Regulations. 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).

9. 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?

10. 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 of the Regulations is provided.

11. 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 of the Regulations and evidence of a type and number specified by the Minister for these purposes and Legislative Instrument IMMI 12/116.

12. The applicant in this case is seeking to rely on evidence referred to in r.1.24(1)(b) – namely a statutory declaration under r.1.25 together with statutory declarations under r.1.26 of the Regulations by competent persons who hold different qualifications.

13. 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 of 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).

14. The applicant has completed a statutory declaration (after 24 November 2012) under r.1.25 which set out the allegation of family violence and named his sponsor who he alleges committed relevant family violence. The applicant has also provided two statutory declarations by competent persons as per r.1.25.

15. The Tribunal is satisfied that 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?

16. In the course of the hearing, the Tribunal questioned the applicant about his relationship with the sponsor and the family violence he claims to have suffered. The applicant claimed that during his marriage, he experienced family violence perpetrated by the sponsor in several ways that include:

    ·Emotional abuse;

    ·Intimidation;

    ·Using coercion and threats; 

    ·Economic abuse: and

    ·Physical abuse.

17. The applicant claims that he was constantly subjected to verbal abuse and insults perpetrated by the sponsor making negative remarks about his religion, culture and his Nepalese background and his family and friends. The applicant claims that when the sponsor became agitated or upset with him, she would hit him in the face with a remote-control device.

18. The applicant claims that the sponsor’s brother had threatened him with violence and told him he would bring his friends around and beat him when he tried to contact the sponsor by telephone after they had separated. He further stated that her brother had told him to stay away from the sponsor or else. The applicant claims that he feared for his safety and wellbeing because of the sponsor’s brother’s anti-social background and who he associated with.  

19. The applicant gave evidence that the sponsor repeatedly threatened to withdraw her visa sponsorship of the applicant and report him to the Department with a view to having him deported back to Nepal if he didn’t obey the sponsor and do what she had told him.

20. The applicant told the Tribunal that he suffered economic abuse and that he was forced to pay 90% of the parties’ expenditure because the sponsor was supporting her family overseas. He further stated that the sponsor forbade him from supporting his own family financially in Nepal and threatened to cancel his visa if he didn’t pay the household expenses.

21. The applicant claims that as a result of family violence perpetrated by the sponsor, he developed symptoms of anxiety and depression and was treated by a Clinical and Forensic Psychologist. The applicant provided a statutory declaration from his psychologist stating that he commenced treatment on 1 September 2015 and is continuing. The applicant has attended 35 consultations, his most recent appointment being on 28 January 2020.

22. Having considered all 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 10 April 2020 the independent expert provided an opinion that the applicant had suffered relevant family violence.

23. The Tribunal notes that the applicant was granted a Subclass 820 provisional partner visa on 28 February 2014.  There is evidence before the Tribunal concerning the various aspects of the relationship. The applicant provided with his application evidence that the couple operated a joint account and limited receipts for payments of household bills. The applicant described in his oral evidence to the Tribunal the couple’s living arrangements and confirmed they lived in the same household and shared domestic responsibilities. A limited number of photographs and statements had been provided with the application to suggest that the couple represented themselves to others as being in a relationship and undertook limited joint social activities together. The Tribunal acknowledges that the relationship has not been in existence for a very long time but within the time that it did exist, it appears that there was some degree of mutual commitment to the relationship and an attempt to make it work, particularly by the applicant. The Tribunal is satisfied, on balance, that the applicant and the sponsor did have a genuine relationship before its breakdown. The Tribunal is satisfied the parties were validly married, had a mutual commitment to a shared life as a married couple to the exclusion of all others and they lived together or did not live separately and apart on a permanent basis.

24. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for the purposes of r.1.22 of the Regulations.

    Conclusion

25. Based on the evidence provided, the Tribunal is satisfied a genuine relationship existed between the parties to begin with, and as the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl.801.221(6)(b) and (c). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

26. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

    ·cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

    Russell Matheson
    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.