Singh (Migration)

[2019] AATA 3217

Singh (Migration) [2019] AATA 3217 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Harwinder Singh

CASE NUMBER:  1718830

HOME AFFAIRS REFERENCE(S):          CLF2012/220949

MEMBER:P. Wood

DATE:4 June 2019

PLACE OF DECISION:  Melbourne, Victoria

DECISION:This Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 4 June 2019 at 12:33pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Circuit Court remittal – relationship with former sponsor ceased – no valid claim of family violence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 375
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25, Schedule 2, cls 820.211, 820.221

CASES
El Jejieh v MHA (No. 2) [2019] FCCA 840

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 March 2014 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 5 November 2012 on the basis of his relationship with his former sponsor, Ms Christin Dobson.

3. 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).

4. This Tribunal (differently constituted) affirmed the decision of the delegate on 16 March 2015. On 21 August 2017, the Federal Circuit Court of Australia remitted the application back to the Tribunal in circumstances where a delegate issued a certificate pursuant to section 375A of the Act and the existence of the certificate was not disclosed to the applicant in the course of the review by the Tribunal and at least some of the documents subject to the certificate were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.

5. In this case the primary criteria must be satisfied by at least one applicant. 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.

6. The applicant appeared in person before the Tribunal at a hearing in Melbourne, Victoria on 30 May 2019 to give evidence and present arguments.

7. The Tribunal also received oral evidence from Ms Ashwini Singh. The applicant and Ms Singh claimed that they are presently in a relationship.

8. The applicant was represented in relation to the review by his solicitor.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. In the present case, the applicant claims the relationship with his sponsor has ceased, and he has been the victim of family violence perpetrated by her.

11. Even were the Tribunal to be satisfied the applicant and the former sponsor were in a genuine spousal relationship prior to its breakdown, the applicant would still need to meet one of the three alternate criteria for the grant of the visa.

12. There is no claim or evidence that the applicant meets any of the alternate criteria other than the criterion which pertains to his claim of having suffered family violence perpetrated by the former sponsor.

13. Accordingly, the issue in this case is whether the applicant has suffered family violence committed by the former sponsor within the meaning of the Regulations.

14. 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.

15. 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).

16. 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?

17. 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.

18. 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 (see IMMI 12/116).

19. The applicant has provided a Statutory Declaration which he declared at Caroline Springs, Victoria on 18 May 2019. The Tribunal has read and had regard to this document.

20. Crucially, the applicant is also required to provide two forms of evidence as specified under Schedule 1 (IMMI 12/116). The applicant did not provide such evidence.

21. Accordingly, a valid non-judicially determined family violence claim has not been made by the applicant.

    Other considerations

22. At the hearing, the Tribunal advised the applicant that a certificate purportedly issued in accordance with section 375 of the Act and contained on the applicant’s file was invalid because it is unsigned.[1]

    [1] El Jejieh v MHA (No. 2) [2019] FCCA 840

23. The Tribunal put to the applicant, in accordance with the procedure in section 359AA of the Act, an anonymous allegation to the effect that the applicant is paying Ms Ashwini Singh to assist him to achieve a migration outcome. Both the applicant and Ms Singh denied this.

24. As the applicant has not made a valid non-judicially determined family violence claim, it is unnecessary for the Tribunal to consider the allegation further.

    FINDINGS

25. Given all the above, the Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 820 visa by the sponsoring partner who sponsored the applicant for that visa: clause 820.221(3)(b)(i).

26. Accordingly, the applicant cannot satisfy the criteria in cl.801.221(b).

27. Further, the Tribunal is not satisfied that a valid claim has been presented in accordance with Division 1.5 of the Regulations as the applicant has not provided two forms of evidence for the purposes of IMMI12/116 (Schedule1) which are in addition to his own statutory declaration.

28. Accordingly, the Tribunal finds that the applicant has not made a valid claim of family violence under the Act.

29. As the applicant’s relationship with his former sponsor has ceased and he has not made a valid claim of family violence, the applicant does not meet the requirements of cl.820.221(3) for the grant of the visa.

30. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets any alternative criteria.

31. For the reasons above, the Tribunal finds the applicant does not satisfy the criteria for the grant of the visa.

    *  *  *  *  *

    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.