Slechtova (Migration)

[2021] AATA 4657

Slechtova (Migration) [2021] AATA 4657 (2 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kristyna Slechtova

CASE NUMBER:  2103096

DIBP REFERENCE(S):  BCC2017/1804626

MEMBER:Andrew George

DATE:2 November 2021

PLACE OF DECISION:  Darwin

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

·cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Statement made on 02 November 2021 at 5:06pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased – non-judicially determined claim of family violence – statutory declaration and corroborating statements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 359A
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25(2), Schedule 2, cls 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 1 March 2021 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 applied for the visa on 21 May 2017 based on her relationship with her sponsor. At that time, 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).

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.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). 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.801.221 because the applicant did not establish that she suffered family violence by the sponsor.[1]

   [1] Decision Record/6.

5. The applicant appeared before the Tribunal on 7 September 2021, represented by Mr Kelleher of Kelleher Migration. A registered psychologist, Mr Jey Lamech, also appeared.

6. Following the hearing, the applicant was invited to comment on or respond to information under s.359A of the Act. The particulars of this information were to provide material in a form consistent with IMMI 12/116. The applicant provided the relevant material on 30 September 2021.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence.

9. The applicant relied upon a statutory declaration dated 2 August 2021 as her evidence. This document outlines her relationship with the sponsor from September 2015 through to November 2019. Given the public nature of this decision record, it is unnecessary to repeat this evidence in detail. It is sufficient to note that the Tribunal accepts the applicant’s broad account of events, which are corroborated by the statements of Mr Kevin-Pierre Sparks of 12 June 2021 and Ms Bridey McNicoll of 27 August 2021.

10. The Tribunal notes the letter of the sponsor to the Department dated 20 November 2019. In that letter, the sponsor says that he never had made long term goals with the applicant. He says that he was living under the ‘guise’ of a de facto relationship. This evidence sits uncomfortably with an affidavit filed in a Federal Circuit Court matter, where the sponsor was a party, where the applicant stated in the opening paragraph that she was the sponsor’s partner. The Tribunal presumes that the sponsor would not have filed this affidavit if it was misleading.

11. On the balance of the evidence before it and placing weight on the household and social aspects of the relationship, the Tribunal is satisfied that the applicant and the sponsor cohabited in a genuine relationship from at least mid-2016 to late 2019. Despite the sponsor’s letter, but consistent with the delegate’s decision,[2] the Tribunal is satisfied that the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others at that time. Accordingly, the Tribunal is satisfied that this relationship was a de facto partnership within the meaning of s.5CB of the Act and that this relationship has ceased.

    [2] ibid/1.

12. The issue that arises is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

13. Under r.1.23, 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.

14. The 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).

15. In the present case the applicant is seeking establish family violence based on a non-judicially determined claim of family violence.

    Has a claim of family violence been made under the regulations?

16. 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.

17. 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).

18. 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).

19. The Tribunal has reviewed the Departmental File to locate the statutory declaration(s) relied upon by the applicant. It seems to the Tribunal that the contents of the Departmental File are not in a coherent order and this process was more time consuming than it might otherwise have been. Nevertheless, the Tribunal has located a Form 1410 statutory declaration of the applicant dated 10 January 2020. This document meets the requirements of r.1.25(2). Its contents are broadly consistent with the evidence placed by the applicant before the Tribunal for hearing and are accepted.

20. The Tribunal has before it a statutory declaration by Mr Jey Lamech, a Registered Psychologist, dated 23 March 2021. Mr Lamech has treated the applicant in the course of his duties and his report states that in his opinion the applicant has been a victim of family violence perpetrated by the sponsor. Reasons are given, that need not be detailed in public, suffice to note that they are accepted by the Tribunal. This report meets the requirements of Schedule 1 of IMMI 12/116.

21. The Tribunal also has before it a report by Ms Isabel Osuna-Gatty dated 9 July 2020, with a covering letter on letterhead from Melaleuca Australia dated 10 September 2021. Noting the oral submission of Mr Lamech as to the function of Melaleuca Australia, the Tribunal is satisfied that the correspondence constitutes an assessment report made by a family violence crisis centre on the organisation’s letterhead. It details the applicant’s claims of family violence by the sponsor and states that the applicant was a victim of such violence. This evidence is consistent with the other evidence before the Tribunal at hearing and is accepted. The Tribunal notes that this report meets the requirements of Schedule 1 of IMMI 12/116.

22. In accepting the evidence of Mr Lamech and Ms Osuna-Gatty, the Tribunal notes that it is consistent with the report from AnglicareNT of 30 January 2020.

23. Therefore, the evidence presented 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?.

24. The Tribunal accepts the evidence of the applicant, Mr Lamech, and Ms Isabel Osuna-Gatty as to the facts and nature of the family violence suffered by the applicant.

25. Accordingly, 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. As such, the applicant is taken to have suffered family violence in the relevant sense: r.1.22.

26. Accordingly, the Tribunal finds that the applicant is taken to have suffered family violence committed by the sponsor for r.1.22.

27. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl.801.221(6)(b) and (c). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

28. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

    ·cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations.

    Andrew George
    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.