SIDHU (Migration)

[2019] AATA 2230

SIDHU (Migration) [2019] AATA 2230 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Baljit Singh SIDHU

CASE NUMBER:  1805550

DIBP REFERENCE(S):  CLF2013/267549

MEMBER:Michael Cooke

DATE:25 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl.820.221(3) of Schedule 2 to the Regulations

·cl.820.211(2) of Schedule 2 to the Regulations

Statement made on 25 February 2019 at 4:09pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – genuine spousal relationship – relationship ceased – family violence – non-judicially determined claim – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A, 1.21, 1.23, 1.24; Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001

CASES
Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32

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 1 November 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 October 2013 on the basis of his relationship with his sponsor. At that time, 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).

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.820.211 and 820.221 which require that 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.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.211 because he did not meet the Schedule 3 criteria.

5. The matter is before the Tribunal because of a Court order remitting the matter to the Tribunal for reconsideration

6. The applicant appeared before the Tribunal on 29 January 2019 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. In the present case, the applicant claims the relationship with the former visa sponsor has ceased (she has confirmed this) and he has been the victim of family violence. He also has to establish ‘compelling reasons’ for not applying the Schedule 3 criteria as he does not meet cl.820.211(2)(d) of the Regulations.

   Background

10. The applicant  made valid applications for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa on 30 October 2013 on the ground of being the de facto partner of a person who was an Australian citizen, and his de facto partner lodged a sponsorship in support of his applications.

    Departmental records indicate his immigration history is as follows:

    ·On 25 June 2009, he first arrived in Australia on a Student (Subclass 572) visa. This visa ceased on 2 November 2011.

    ·On 19 September 2011, he lodged a Skilled (Subclass 485) visa application. This application was refused on 18 April 2012 on the ground that he provided false and misleading information to the Department with regard to this application. In oral evidence he has insisted that this was the product of using a migration agent who he trusted but who gave the Department false information.

    ·He then lodged a review of the decision with the then Migration Review Tribunal (MRT) on 7 May 2012 and the review application was withdrawn on 26 September 2013 due to "no jurisdiction".

    ·The associated Bridging visa granted with this application ceased on 24 October 2013.

    ·On 22 October 2013, he lodged an invalid Partner (Subclass 820/801) visa application.

11. He currently remains the holder of a Bridging (Subclass 030) C visa which was granted in association with his current Partner application lodged on 30 October 2013.

    Assessment against criterion 3001           

12. In order to meet Schedule 3 Criterion 3001, the application must have been validly made within 28 days after the relevant day. For the purposes of this application the relevant day is the last day the applicant held a substantive visa - which was 2 November 2011. The application for the visa (the subject of this review) was made on 30 October 2013 thus the applicant does not meet criterion 3001.

    ‘Compelling reasons’ for waiver of the Schedule 3 criterion

13. The applicant made the following claims to the delegate:

    ·You and your sponsor have a long-term genuine relationship and will experience emotional/psychological hardship

    ·Your sponsor's medical conditions require your on-going care

    ·You have a close relationship with your sponsor's children

    ·You were not aware of the visa requirement for this Partner application and have complied with the conditions of your previous visas.

14. Subsequently the law has changed in this area following the Waensila case. The applicant is now allowed to submit ‘compelling reasons’ for waiver up to the time of decision. The applicant has forwarded the following additional ‘compelling reasons’.

    ·    His failure to apply on time was due to the fact that he made an error in his Partner visa application when he applied prior to the expiry of his Bridging visa. Having needed to cure his application he was unable to, therefore, submit it on time.

    ·    The personal health impact from the trauma induced by the breakdown of his relationship through family violence.

15. The Tribunal has had the benefit of an over-arching view of the applicant’s life since his arrival in Australia. This has been assisted by information that he has submitted through his representative and other information on file. This included contemporary Statutory Declarations from friends and a family member of his former sponsor’s family (his former step-mother-in-law) which elaborate on the circumstances of his life since 2013. He has also provided an extensive personal history of his life with the sponsor in a submission and his life subsequently.

16. The Tribunal is satisfied that the ‘compelling reasons’ advanced by the applicant in his recent submission are ‘forceful’ reasons for waiver and thus are a basis for not applying the Schedule 3 criteria to the applicant.

17. The Tribunal finds the applicant does meet the waiver provision in cl.820.211(2)(d)(ii) of the regulations.

18. On the basis of the evidence which includes investigation by the Tribunal of ‘the full circumstances of the relationship’ - pursuant to reg.1.15A(3) - the Tribunal is satisfied that the applicant and the sponsor were in a genuine partner relationship and that this relationship has ceased. The applicant, therefore, meets cl.820.211(2).

19. The further 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.

20. 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).

21. 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?

22. 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.

23. 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 in an Instrument and provided by the applicant in a Department Form 1410

    ·the other evidence (2 x Statutory Declarations) submitted in support which matches that specified in the Instrument being  

    §A report from a registered Social Worker (Charlotte Leung OAM)

    §A report from Dr CK Raju a Doctor and the applicant’s GP.

    §A report from Dr Nicholas Cassimatis a Consulting Psychiatrist

24. Therefore, the evidence presented (on Departmental Forms) 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?

25. The Tribunal has listened to the applicant’s oral evidence in which he elaborated at length on the traumatic life he had shared with the former sponsor. Unusually he has indicated he enjoys the support of the former sponsor’s parents who have written to the Tribunal to give their account of the relationship and his role in it. His doctor has given the Tribunal a fulsome account of his treatment of the applicant and his continuing attempts to treat and overcome the traumatic events he endured with the former sponsor.

26. Having considered all of the evidence before it, the Tribunal is satisfied, for the purposes of r.1.23, that the applicant has suffered family violence committed by the sponsor that occurred whilst the parties were in the relationship.

    DECISION

27. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl.820.221(3) of Schedule 2 to the Regulations

    ·cl.820.211(2) of Schedule 2 to the Regulations

    Michael Cooke
    Senior 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.