Sharma (Migration) - [2019] AATA 2415

Sharma (Migration) [2019] AATA 2415 (6 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rajinder Sharma
CASE NUMBER:  1821172
DIBP REFERENCE(S):  BCC2016/3598646
MEMBER:Justine Clarke
DATE:6 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

Statement made on 06 May 2019 at 12:16pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship with sponsor ceased – sponsor withdrew sponsorship – non-judicially determined claim of family violence not made out – evidentiary requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25, Schedule 2, cls 820.211, 820.221

CASES
Dang v Minister for Immigration [2016] FCCA 1426
Lawani v MIAC [2013] FCCA 114
MIAC v Pham [2008] FCA 320

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 19 July 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Mr Rajinder Sharma, is a 26 year old national of India.
On 28 October 2016, the applicant applied for the visa on the basis of his relationship with his sponsor, Mrs Harmandeep Kaur.
At the time of application, 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). The primary criteria must be satisfied by at least one applicant. The primary criteria include cl.820.211 and 820.221 which require, at the time of application and decision, 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.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.
The applicant provided the Tribunal with a copy of the primary decision. The delegate was satisfied that, at the time of application on 28 October 2016, the applicant and the then sponsor were in a spouse relationship as defined in s.5F of the Act and therefore met the requirement in cl.820.211(2). However, the delegate refused the visa because the delegate was not satisfied that the applicant met the time of decision requirement in cl.820.221(1)(a) and was not satisfied that he met the alternative criteria in cl.820.221(1)(b). The primary decision states:
·On 7 August 2017, the sponsor informed the Department that her relationship with the applicant had ceased and that she wished to withdraw her sponsorship.
·On 30 August 2017, the Department wrote to the applicant to provide him with an opportunity to submit information concerning the reported change to his relationship status.
·On 27 September 2017, the applicant requested an extension of time in which to respond.
·On 29 September 2017, the delegate granted an extension of time of a further 28 days.
·On 27 October 2017, the applicant requested a further extension of time.
·That same day, on 27 October 2017, the delegate refused the second request and wrote to the applicant to advise that ‘A decision will be made based on the information held on file. If you wish to provide further information for consideration, please send the information before a decision is made’.
·As at 19 July 2018 (the date of the Department’s refusal decision), the Department had not received a response from the applicant.
On 21 July 2018, the applicant applied to the Tribunal for review of the primary decision. The applicant was initially represented by a registered migration agent but for the most part has been unrepresented in this review.
On 6 December 2018, the Tribunal wrote a letter to the applicant pursuant to s.359(2) and purportedly pursuant to s.359A of the Act. With respect to s.359A, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reason, or a part of the reason, for affirming the decision under review. The letter stated that information on the Department’s file indicates that the applicant’s relationship with the sponsoring partner has ended and that the sponsoring partner has withdrawn the sponsorship. With respect to s.359(2), the Tribunal informed the applicant that if he was no longer in a relationship with the sponsoring partner then there were a number of exceptions under which he could be granted the Partner visa. The letter listed exceptions relating to the death of the sponsoring partner, family violence and certain court orders or responsibilities in relation to children. The letter invited him to provide information that he believes may be relevant to the exceptions. The letter stated that, if the comments or response and the information were not provided in writing by 20 December 2018 or an extension of time not sought by that time, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response or the information.
On 19 December 2018, within the requested timeframe, the applicant provided a written response, claiming that he needed more time to engage a new agent and to find out ‘whether it is violence or not’. He also stated ‘I believe that still my relation can recover and we can be together’.
On 8 January 2019, the Tribunal wrote to the applicant and informed him that he had been granted an extension of time until 31 January 2019.
On 29 January 2019, the applicant filed a further statement by email.
On 19 March 2019, the applicant appeared before the Tribunal by telephone (his request for the postponement of the hearing on medical grounds having been refused) to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. When asked, the applicant stated that he was making a claim of family violence.
The Tribunal notes that there is no general obligation on the Tribunal to point out what evidence is required to meet the family violence provisions, or to disclose its thought processes in advance of its decision as to whether or why evidence provided is deficient: MIAC v Pham [2008] FCA 320 (Siopis J, 12 March 2008) at [51]–[54]; Lawani v MIAC [2013] FCCA 114 (Judge Whelan, 3 May 2013) at [53]–[55]. Notwithstanding, in the present case, the Tribunal did disclose its thought processes in advance of this decision. As the Tribunal was mindful that the applicant was unrepresented, the Tribunal informed the applicant at the hearing that the Tribunal must assess whether a valid claim of family violence has been made under the Regulations.
Later on 19 March 2019, the Tribunal wrote to the applicant, attaching relevant extracts from the Regulations and a copy of the legislative instrument IMMI 12/116, and provided him with an opportunity to submit evidence which clearly met the legal requirements. The Tribunal requested that this information be submitted by 16 April 2019.
On 11 April 2019, the applicant provided further documentary evidence in support of his case, namely: his statutory declaration (Form 1410) made on 11 April 2019; a statutory declaration made by Maria Haque on 4 April 2019, referring to an attached signed report prepared by her on 3 April 2019; a statutory declaration made by Dr Nima Rahmanamlashi on 10 April 2019 and a signed letter by Dr Kyaw Myint Malia on 8 April 2019.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims the relationship with Mrs Kaur, the visa sponsor, has ceased, and that he has been the victim of family violence. The issue is whether he meets cl.820.221(3)(a) and (3)(b)(i) of Schedule 2 to the Regulations.
Was the applicant the spouse of the sponsoring partner?
In assessing whether, prior to the cessation of the relationship, the applicant was the spouse of the sponsoring partner, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files, as well as the oral evidence given at the hearing.
On the basis of 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.
Has a claim of family violence been made under the Regulations?
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).
The applicant is seeking to establish family violence on the basis of a non-judicially determined claim of family violence. 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 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 (see IMMI 12/116).
Consideration of the applicant’s statutory declaration of 11 April 2019
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).
The Tribunal finds that the applicant’s statutory declaration of 11 April 2019 (Tribunal file ff.71–73) meets the requirements of r.1.25(1) and (2).
Consideration of evidence specified in the applicable legislative instrument
Legislative Instrument IMMI 12/116 specifies a minimum of two items of evidence from a list in the Schedule to the instrument and that not more than one of each type may be presented. Two of the items listed are:
·A medical report, hospital report, discharge summary or statutory declaration that is made by either a person who is:
oregistered as a medical practitioner and is performing the duties of a medical practitioner, or
oregistered as a nurse within the meaning of section 3 of the Health Insurance Act 1973 and is performing the duties of a registered nurse; and
·a statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist.
Consideration of other evidence—the medical evidence
The legislative instrument requires that evidence of the type detailed in the first bullet point above, that is medical evidence, identify the alleged victim and detail the physical injuries or treatment for mental health that is consistent with the claimed family violence.
The Tribunal notes that the applicant has submitted one medical report signed by Dr K M Malia on 8 April 2019 (Tribunal file f.69) and a statutory declaration made by Dr N Rahmananmlashi on 10 April 2019 (Tribunal file f.68). Both documents give the applicant’s name and detail treatment for mental health that is consistent with a claim of family violence, although neither document actually mentions family violence. Dr Malia stated that the applicant ‘has been very depressed and anxious due to marital issues and to this day he is a very anxious and depressed man’ whereas Dr Rahmananmlashi merely stated that the applicant showed ‘signs and symptoms of depression/anxiety’.
The Tribunal prefers the evidence of Dr Malia as the doctor states ‘I have known him as a patient since 2016’ whereas Dr Rahmananmlashi stated that the applicant had ‘attended our practice on 10.04.2019’. Further, Dr Malia gives details of his/her provider number.
The Tribunal finds that Dr Malia’s medical report of 8 April 2019 fulfils the requirements of r.1.24.
Consideration of Maria Haque’s statutory declaration of 4 April 2019
Ms Haque’s statutory declaration (Tribunal file f.70) is very brief, with the majority of detail appearing in the accompanying report (Tribunal file ff.81–86). In the accompanying report, Ms Haque identified herself as a general psychologist and gave her provider number. Although she did not give her registration details, they can be found on the Australian Health Practitioner Regulation Agency website: >
The Tribunal considers that Ms Haque’s statutory declaration and accompanying report do not fulfil the requirements of r.1.24.
The legislative instrument requires that a registered psychologist’s statutory declaration state that, in their opinion, the alleged victim was subject to family violence; detail the reasons for that opinion; and identify the alleged perpetrator. Ms Haque’s statutory declaration and accompanying report do not provide such details. Rather, Ms Haque declared in her statutory declaration that she had ‘wrote everything in the report that was stated by Mr Rajinder Sharma in the therapy session’. She identified the applicant’s former partner as ‘Ms Harman Deep Kaur’ [sic] but at no point did Ms Haque state that, in her opinion, the applicant was subject to family violence by Ms Kaur or detail the reasons for such an opinion. She simply stated, ‘Mr Sharma’s diagnoses is as a result of the psychological impact of the breakdown of his marriage’.
Further, the Tribunal is mindful of the Court’s decision in Dang v Minister for Immigration [2016] FCCA 1426 (Judge McNab, 30 June 2016), which considered the specification of evidentiary requirements in the instrument. The Court approved of the Tribunal’s conclusion, in that case, that in order to meet the requirements of the instrument, ‘the relationship between the Applicant and the psychologist or social worker must have been essentially a therapeutic one’.
The evidence does not indicate that Ms Haque has treated the applicant in the context of a therapeutic relationship. This is because it appears that, at the time of writing her report and making her statutory declaration, Ms Haque had met with the applicant on only one occasion—although that date is not specified. She concluded her report by stating, ‘[w]hile progress has been made in therapy, it is recommended Mr Sharma continue with therapy for further treatment gains’.
The Tribunal finds that Ms Haque’s statutory declaration and accompanying report do not fulfil the requirements of r.1.24.
Conclusion
The Tribunal has found that the evidence presented does not meet the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23.
Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.820.221(3)(b)(i) 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
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa
Justine Clarke
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.