Roy (Migration) - [2021] AATA 1475

Roy (Migration) [2021] AATA 1475 (16 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Christy Roy
CASE NUMBER:  1820692
DIBP REFERENCE(S):  BCC2014/2247716
MEMBER:Kira Raif
DATE:16 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:
·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations

Statement made on 16 March 2021 at 3:42pm
CATCHWORDS
MIGRATION –Partner (Migrant) (Class BC) visa – Subclass 100 –applicant has suffered family violence committed by the sponsor – relationship with sponsor has ceased – opinion from independent expert –decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.21, 1.22, 1.23, 1.24, 1.25, Schedule 2, cl 100.221
CASES
Dang v Minister for Immigration [2016] FCCA 1426
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 July 2018 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a national of India, born in September 1980. She applied for the visa on 8 September 2014 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because the delegate found that the applicant’s relationship with the sponsor ended and the delegate was not satisfied the applicant suffered family violence. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 2 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s present partner. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
At that time, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
Relevantly to this matter the primary criteria include cl.100.221 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.100.221(4)(b), (c)(i). The applicant claims this occurred in this case.
In the present case, the applicant claims the relationship with the sponsor has ceased, and she has been the victim of 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 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 is provided.
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 and evidence of a type and number specified by the Minister for these purposes.
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).
The applicant provided to the delegate her own declaration, as well as declarations from a registered psychologist Mr Newton and a social worker Mr Stewart. Both declarants indicated that they had no therapeutic relationship with the applicant and that they saw the applicant for the purpose of providing evidence in support of her family violence claims. Having regard to the reasoning in Dang v Minister for Immigration [2016] FCCA 1426 the delegate found that in the absence of a therapeutic relationship, these declarations did not meet the statutory requirements.
The applicant provided additional evidence to the Tribunal. This included updated statements from Mr Newton and Mr Stewart who refer to having again examined the applicant before providing the relevant statements. Having regard to that evidence, the Tribunal finds that there was a therapeutic relationship between the applicant and those professionals, albeit a brief one. The Tribunal is satisfied 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?
In oral evidence the applicant confirmed that her relationship with the sponsor ended and they have formally divorced.
The applicant states that her marriage was an arranged marriage. She visited the sponsor for a few months while her application was being processed and she realised that the sponsor had a gambling addiction but he promised her that he would try to resolve the problem. Before she came to Australia, she realised that the sponsor had a lot of debts and she had to sell her jewellery and ask for money from others which she gave to her partner. After she arrived in Australia he continued to gamble. Friends and relatives called her saying he owed them money but he refused to take their calls. She had two jobs and he was taking her money and had not provided any support or provide any care for her. The applicant described the incident when she was forced to have non-consensual sex with the sponsor. She left the family home shortly after and the relationship ended. The applicant said that while in a relationship, she was constantly stressed and anxious about their living arrangements. She said there was emotional abuse before the physical abuse took place. Prior to the incident, her partner would dictate to her how to dress or what to do, she felt as if she was being owned. The applicant states that she has recognised the damage the relationship has caused her and she has been receiving counselling and is on medication. The applicant said there was complete lack of care by her ex-husband and she felt it almost amounted to physical violence.
Having considered all of 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 16 March 2021 the independent expert provided an opinion that the applicant had suffered relevant family violence.
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. Under r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.
Where the independent expert’s opinion is that a person has suffered relevant family violence, at least part of the violence that led to that opinion must have occurred while the married or de facto relationship existed. The applicant presented evidence of her relationship with the sponsor and the delegate accepted that prior to its breakdown, the applicant was the spouse of het sponsor, which resulted in the grant of the temporary visa. The applicant claims the relationship broke down around mid-August 2016 and the Expert found there was an instance of family violence on 1 August 2016. The Tribunal is satisfied that part of family violence occurred during the relationship. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for r.1.22.
Conclusion
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.100.221(4)(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
The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:
·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations.
Kira Raif
Senior Member