Shi (Migration)

[2022] AATA 2776

Shi (Migration) [2022] AATA 2776 (26 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huiqi Shi

CASE NUMBER:  1810849

HOME AFFAIRS REFERENCE(S):          BCC2015/3384052 CLF2018/16598 OSF2014/054620

MEMBER:M. Edgoose

DATE:26 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 26 May 2022 at 11:26am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – non-judicially determined claim of family violence – financial abuse – evidential requirements – minimum of two items of evidence from the list in Schedule 1 – social worker – family violence assessment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25; Schedule 2, cl 100.221

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 6 April 2018 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 November 2014 on the basis of his relationship with his sponsor, Ms Hong Zhi Gong. 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 (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 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.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 100.221 because the applicant was no longer the spouse of the sponsor and the delegate was not satisfied that the relationship had ended as a result of family or domestic violence.

5. The applicant appeared before the Tribunal on 26 May 2022 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, the applicant claims the relationship with Ms Hong Zhi Gong, the visa sponsor, has ceased, and he has been the victim of family violence.

8. According to the delegate’s decision the applicant in this matter was granted a Subclass 309 Partner (Provisional) visa on 11 November 2015 and arrived in Australia on 20 November 2015. On 1 February 2016 the applicant and sponsor both informed the Department that the relationship has broken down however on 3 June 2016 the sponsor notified the Department that they had reconciled the relationship. On 13 June 2016 the Department wrote to the applicant and sponsor inviting them to submit statutory declarations attesting to the reconciliation. On 11 and 14 July 2016, the sponsor and the applicant respectively submitted statutory declarations advising that the relationship had broken down again.

9. On 14 July 2016 the Department sent the applicant an email inviting him to comment on the change in circumstances. The applicant responded to this request on 23 July 2016 advising the Department that he had experienced family violence perpetrated by the sponsor. On 4 August 2016 the applicant submitted a number of documents to support his claim that included the following:

   a.An application and summons for an intervention order applied by the applicant on 18 July 2016 against the sponsor; the application was refused on 22 December 2016

   b.A statutory declaration Form 1410 dated 20 June 2019.

10. Following these submissions, the Department wrote to the applicant again on 5 August 2016 requesting further evidence of his relationship with the sponsor prior to its cessation. The applicant responded on 31 August 2016. However, on 2 November 2016 the Department wrote to the applicant again requesting further evidence and he submitted a response on 6 December 2016.

11. On 23 January 2017 the Department wrote to the applicant again via email requesting evidence of the alleged family violence, in accordance with the Regulations. In its letter to the applicant the Department detailed the type of evidence deemed acceptable in order to meet the requirements of a valid claim. On 21 March 2017 the applicant submitted the following evidence in support of his claim of family violence:

    a.ANZ bank account statements

    b.Assorted SMS message screenshots

    c.Invoice by Susan Morwood (social worker) dated 22 December 2016

    d.Copy of a family violence report in the form of a statutory declaration dated 23 December 2016 by Ms Susan Morwood

    e.Referral letter from Dr Anthony Lo (GP) to Dr Paul Grech (psychologist) dated 3 December 2016

    f.Copy of a medication prescribed by Dr Anthony Lo

    g.Statutory declaration from the applicant dated 12 February 2017.

12. On 5 June 2017 the Department wrote to the applicant again stating that the evidence provided was not sufficient and sought further evidence in accordance with the Regulations. On 22 June 2017 the applicant provided the following evidence in support of his claim of family violence:

    a.Statutory declaration made by Susan Morwood dated 23 December 2016

    b.Form 1410 signed by the applicant dated 20 June 2017

    c.Application and summons for an intervention order against the sponsor dated 18 July 2016

    d.Document filed by the applicant in the Magistrates Court

    e.Certified extract from the Sunshine Magistrates Court dated 20 December 2016

    f.Federal Circuit Court of Australia documents in relation to the sponsor and her ex-husband

    g.Family Court of Australia documents

    h.Referral letter written by Dr Anthony Lo to Dr Paul Grech dated 3 December 2016.

13. On 22 February 2016 the Department wrote to the applicant given that it was not satisfied with the statutory declaration made by Susan Morwood. The applicant was informed at this time that the Department was not satisfied that the evidentiary requirements of the Regulations had been met as Ms Morwood had not indicated in her statutory declaration that she provided the applicant with any counselling or assistance but she states:

    Mr Shi self referred in November 2016 requesting a family violence assessment as required by the Department of Immigration Border Protection in relation to his application for a residency visa.

    At this time the Department invited the applicant to submit further evidence in accordance with the Regulations and within the letter sent to him the applicant was informed about the type of evidence required. On 21 March 2018 the applicant submitted the following evidence:

    a.    Statutory declaration made by the applicant dated 20 March 2018

    b.    Medical certificate issued by Dr Sanwar Sawdager (GP) on 15 March 2018.

    However, the applicant did not address the Department’s concerns about Ms Morwood’s statutory declaration or the type of support she had been providing him.

14. Following this the Department considered the applicant had been provided a reasonable number of opportunities to provide the necessary evidence. The Department therefore proceeded to make a decision and found that the applicant did not meet the statutory requirements to support a non-judicially determined claim of family violence. Therefore, the applicant could not satisfy the requirements of cl 100.221.

15. However, based on the evidence on the Department file the Tribunal is satisfied the applicant and sponsor were in a genuine relationship prior to its cessation and the alleged claim of family violence. 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.

16. 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).

17. 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?

18. 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.

19. 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 according to IMMI 12/116.

20. 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).

21. In June 2020, the applicant submitted a number of documents to the Tribunal, including the following:

    a.A copy of a letter from Susan Morwood (social worker) stating that she saw the applicant for a family violence assessment report for the Department of Immigration on 9 November 2016 and 16 November 2016

    b.A copy of an email to the applicant from Susan Morwood providing instructions for payment of the report

    c.A statement by the applicant submitting that Ms Morwood did give him counselling by indicating in her communications with him that she cared about him and it was thus a “therapeutic relationship”

    d.A copy of a mental health plan

    e.Copies of some emails between the applicant and Ms Morwood.

22. The applicant claims that he was subjected to family violence in the form of financial abuse which eventually caused the marriage breakdown.

23. The Tribunal notes that no further submissions have been received since June 2020. At hearing the applicant informed the Tribunal that he had no further evidence to submit.

24. Given this the Tribunal has considered the evidence before it to determine if a valid claim of family violence has been made according to the Regulations.

25. The Tribunal accepts that the applicant has provided a valid statutory declaration to the Department dated 12 February 2017 which supported his alleged claim of family violence. However, to make a valid claim the applicant is required to meet the requirements of Schedule 1. That being the applicant is required to provide a minimum of two items of evidence from the list in Schedule 1 and no more than one of each type of evidence may be presented for the purposes of reg 1.24(b).

26. The applicant claims that the evidence provided meets the requirements of Schedule 1. Given that the applicant has made this claim the Tribunal has reviewed the evidence before it. The Tribunal notes that this is the same evidence the applicant submitted to the Department before it reached its refusal decision. The Tribunal is satisfied that the applicant has met the requirements of providing medical evidence from a Dr Anthony Lo (GP). The Tribunal is not able to consider the second piece of medical evidence from a Dr Sanwar Sawdager (GP) given that IMMI 12/116 specifies that no more than one of each type of evidence may be presented from the list in Schedule 1 for the purposes of reg 1.24(b).

27. The Tribunal therefore has given consideration to and reviewed the statutory declaration made by Ms Susan Morwood, a social worker, and whether her statutory declaration meets the requirements of Schedule 1. As per the delegate’s decision the concern for the Tribunal is that Ms Morwood states that:

    Mr Shi self referred in November 2016 requesting a family violence assessment as required by the Department of Immigration Border Protection in relation to his application for a residency visa.

    At hearing the applicant confirmed to the Tribunal that he self referred himself to Ms Morwood in November 2016 requesting a family violence assessment.

28. The Tribunal has reviewed the statutory declaration made by Ms Morwood and is not satisfied that her relationship with the applicant as his social worker had been a therapeutic one and that she had not provided the applicant with counselling or assistance. In addition to this the Tribunal has genuine concerns about the applicant’s genuine intentions when he referred himself to Ms Morwood requesting a family violence assessment. Collectively the Tribunal is not satisfied that Ms Morwood’s statutory declaration meets the requirements of Schedule 1 and therefore gives it minimal weight.

29. 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.

30. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl 100.221(4)(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

31. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) 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.