Singh (Migration)

[2021] AATA 5472

Singh (Migration) [2021] AATA 5472 (1 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karanvir Singh

CASE NUMBER:  1921275

DIBP REFERENCE(S):  CLF2014/110895

MEMBER:Kira Raif

DATE:1 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa

Statement made on 01 December 2021 at 6:09am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Federal Circuit Court remittal – relationship ceased – non-judicially determined claim of family violence – declarations and statements from applicant and specified practitioners –independent expert’s opinion of no relevant family violence – claim of deficiencies in assessment and denial of procedural fairness – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, Schedule 2, cl 801.221(6)(b), (c)

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 18 July 2014 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 national of India, born in March 1983. The applicant applied for the visa on 5 May 2010 on the basis of his relationship with his sponsor. He was granted the Subclass 820 Temporary Partner visa on 18 November 2010. In June 2013 the applicant informed the delegate that his relationship with the sponsor had ended and that he suffered family violence. The delegate refused to grant the visa on the basis that the applicant did not meet cl.801.221 because the delegate was not satisfied the applicant had suffered family violence.  The applicant seeks review of the delegate’s decision.

3. In May 2015 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of the Tribunal’s decision and the matter was remitted by the Court for reconsideration.

4. The applicant appeared before the Tribunal on 25 March 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter the primary criteria include cl.801.221 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.801.221(6)(b), (c)(i). In the present case, the applicant claims the relationship with the visa sponsor has ceased, and he has been the victim of family violence.

6. 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.

   Has the claim of family violence been made?

7. The primary decision record, a copy of which the applicant presented to the Tribunal, indicates that the applicant informed the delegate in June 2013 that his relationship with the sponsor ended and that he had suffered family violence. The applicant had subsequently provided his own statutory declaration, a statement from his treating doctor and a declaration from his treating psychologist.

8. The Tribunal finds that the presented evidence meets the requirements of r. 1.24. The Tribunal finds that the claim of family violence has been made.

   Has the applicant suffered family violence?

9. The primary decision record indicates that the delegate referred the applicant for assessment by an Independent Expert (IE) in February 2014 and the IE formed the view that the applicant did not suffer relevant family violence. The applicant provided a number of submissions outlining what he claimed to be deficiencies in the IE assessment. Essentially, the applicant claimed that he had been denied procedural fairness by the IE and he disagreed with the findings made by the Expert.

10. In oral evidence the applicant told the Tribunal that the relationship was going well from 2010 until June 2012. At that time his mother came to Australia to visit them and from that time the sponsor’s behaviour changed as she was verbally violent and rude to his mother and she threatened to withdraw the sponsorship, which she always used against him. The applicant states that at the time he felt hurt and threatened. At some point the sponsor decided to live with her parents because she told him she did not feel safe in the house when he worked night shifts and she later told him that she was in a relationship with another person. The applicant states that whenever he questioned the sponsor, she threatened him with being deported and with calling the police, stating they would not listen to him. She also threatened him that her new boyfriend would bash him up and he felt fearful of getting out of the house. The applicant states that he lived in constant fear for a few months. The applicant states that the relationship finally ended in June 2013 and until that time they both tried to make it work and it was ‘on and off’. The applicant states that there were no physical ‘exchanges’ but there were threats. He did not talk to anyone because the sponsor told him that the police would not listen to him and he was fearful of telling anyone.

11. The Tribunal has considered the applicant’s evidence but has also considered the fact that  an Independent Expert had previously formed the view that the applicant had not suffered family violence. The Tribunal was not satisfied the applicant had suffered family violence. As such, the Tribunal had referred the matter to an Independent Expert for their opinion. On 1 September 2021 the Tribunal received the Independent Expert’s report that the applicant had not suffered family violence. The Tribunal wrote to the applicant pursuant to s. 359A of the Act inviting his comments on that information. The applicant replied by raising concerns about aspects of the IE report and these were forwarded to the IE for review. In November 2021 the Tribunal received further advice from the Independent Expert indicating that, having regard to the applicant’s additional comments, the opinion that the applicant has not suffered family violence had not changed. This information was also provided to the applicant pursuant to s. 359A of the Act.

12. In his submission to the Tribunal of 25 November 2021 the applicant states that he had no further comments and he requested the Tribunal to make the decision on the material before it. However, the applicant’s representative refers to the reasoning of the High Court in Sok and states that the Tribunal, as an independent decision-maker, need not follow the opinion of the Independent Expert. With respect, that is not what the Court has decided in Sok. The legislation makes it clear that the Tribunal must accept a valid opinion of an independent expert. In this case, while the Tribunal acknowledges the applicant’s concerns about the report, and also acknowledges the representative’s submission that the applicant’s cultural norms are relevant. However, the applicant has not established, in the Tribunal’s view, that the IE opinion is invalid. The Tribunal is satisfied, having regard to all the circumstances, that the IE opinion is valid and that opinion indicates that the applicant has not suffered relevant family violence. As such, the claim of the family violence has not been established.

13. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.801.221(6)(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

14. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa

    Kira Raif
    Senior Member