Souris (Migration)

[2023] AATA 3700

Souris (Migration) [2023] AATA 3700 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Manon Souris

CASE NUMBER:  2115063

HOME AFFAIRS REFERENCE(S):          BCC2020/2403164

MEMBER:Sheridan Aster

DATE:30 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 30 October 2023 at 2:53pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – member of the family unit – relationship ended – allegations of family violence – decision under review affirmed       

LEGISLATION

Government Information (Public) Access) Act 2009 (NSW)
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.311

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 13 October 2021 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Mr Stanislas Feder applied for a Subclass 186 visa as the primary applicant on 1 October 2020. Ms Manon Souris was included in the application as his de facto partner. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria.

4. In the present case, the applicant is seeking the visa as a secondary applicant in the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.311 of Schedule 2 to the Regulations, which requires that the applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

6. Ms Souris applied to the Tribunal for a review of that decision on 26 October 2021. A copy of the delegate’s decision and reasons was provided to the Tribunal at the time of application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 186.311 requires that the applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and made a combined application with the primary applicant.

9. The Departmental file contained an email dated 18 June 2021 from Ms Karen Pearson of Ajuria Lawyers to the Department of Home Affairs. Ms Pearson represented both Ms Souris and Mr Feder when the visa application was made.

10. However, on 5 February 2021, Ms Pearson advised the Department that the de facto relationship between Ms Souris and Mr Feder had ended and requested that she be withdrawn from the visa application.

11. In the email of 18 June 2021, Ms Pearson advised the Department that it had come to her attention that a second Notification of changes in circumstances form had been submitted on 11 May 2021, claiming that the relationship was ongoing. Ms Pearson notified the Department that this form was not submitted by Mr Feder and confirmed that the relationship had ended and Ajuria Lawyers no longer represented Ms Souris.

12. On 31 August 2023, the Tribunal invited Ms Souris to comment on or respond to the above information. A copy of the emails from 5 February and 18 June 2021 were attached to the invitation. The private information of Mr Feder was redacted.

13. The letter advised that the information outlined above was relevant to the review because it indicates that Ms Souris fraudulently claimed to be in an ongoing de facto relationship with Mr Feder, when in fact that relationship ended.

14. Ms Souris was advised that if the Tribunal relied on this information in making its decision, it may find that she is not the member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa, as required by cl 186.311 of Schedule 2 to the Regulations and the decision under review would be affirmed.

15. On 14 September 2023, Ms Souris responded to the Tribunal’s invitation. She advised that the primary applicant had been violent, and she had to leave the relationship and shared home because of his dangerous behaviour. Mr Feder threatened to remove Ms Souris from the application if she mentioned leaving him. When Ms Souris left the relationship Mr Feder harassed her with calls and text messages and showed up at her home and work. On 25 February 2021 he showed up at a function attended by Ms Souris and threatened her in front of other guests. He was escorted from the venue due to his violent behaviour. Ms Souris reported Mr Feder’s threat to New South Wales (NSW) Police and sought help from her General Practitioner, who referred her to a therapist that specialised in domestic violence.

16. Ms Souris refuted the allegation that she made fraudulent changes to Mr Feder’s visa application, claiming that she never had access to the application, and it was not visible in her online immigration portal, ImmiAccount. Ms Souris hypothesised that Mr Feder was scared after she reported his death threat to the police and initially put her back on the application to avoid any further issues.

17. Ms Souris outlined that she has been living in Australia since 2014 and she has built a life in this country. She has worked in Queensland, New South Wales and Victoria, finally settling in Sydney, where she is employed as a marketing specialist for an ICT company. She would like to permanently settle in Australia. Ms Souris explained that she appealed the decision to refuse her visa application on the basis that it was unfair in the circumstances. She highlighted that the Department’s website outlines that:

    The Department’s policy is to not cancel a person’s temporary visa solely because their relationship with the primary visa holder broke down due to domestic and family violence. However, we may cancel a visa on other grounds.

    We do not encourage visa applicants to stay in violent or dangerous relationships under any circumstance. This includes to get a visa outcome. If you are experiencing domestic and family violence, we strongly encourage you to contact the police. You can also seek help from service providers.

18. In the letter of 31 August 2023, the Tribunal also informed Ms Souris about information contained on the Departmental file that was subject to restrictions on release. The Minister (or a delegate) may place restrictions on certain material given to the Tribunal by the Department. This is done by certifying in writing that disclosure of the material is contrary to the public interest or by notifying the Tribunal that it was given in confidence to the Department. In this matter, the Department issued a certificate over a number of documents supplied to the Tribunal under s 376 of the Act. A copy of the certificate was provided with the letter.

19. The Department sought to protect disclosure of five folios of its file on the basis that they contain information that was provided to the Department in confidence:

    ·ADD2021/5990644

    ·CLD2021/25964487

    ·CLD2021/24655746

    ·CLD2021/24458019

    ·CLD2021/24451685

20. The Tribunal advised Ms Souris of its preliminary view that the certificate is valid and provided her with an opportunity to comment. The Tribunal also advised Ms Souris that it has the discretion to disclose the information which is subject to the certificate, or it may withhold the information, having regard to any comments raised by the delegate in the certificate.

21. Having reviewed the material covered by the certificate, the Department sought to protect the disclosure of information that relates to the primary visa applicant, Mr Feder. The documents contain personal information about Mr Feder which does not relate to Ms Souris’ application for review. The Tribunal elected to withhold the information pending consideration of Ms Souris’ comments. Ms Souris made no comment regarding the validity of the certificate and did not request access to the documents covered.

22. On 10 October 2023, Ms Souris advised the Tribunal that she had submitted a request to access the report made with NSW Police under the Government Information (Public) Access) Act 2009 (NSW). On 11 October 2023, Ms Souris emailed the Tribunal to advise that NSW Police contacted her to say they had to release the report without details of the other party. They recommended that the Tribunal issue a summons if it wished to access the full report. The police report number was provided for the Tribunal’s reference. The Tribunal did not consider it necessary to summons NSW Police for access to the report because it accepts that Ms Souris made a police report and the contents of the report would not influence the outcome of the application for review.

23. On 23 October 2023, Ms Souris provided undated notes of an appointment with her General Practitioner during which she discussed the end of her relationship and was referred for counselling under a mental health care plan. She also supplied an incoming referral form completed by Bondi Beach Cottage, a community organisation that provides family violence support. The notes indicate that Ms Souris attended one session with the service on 12 April 2021, during which she discussed Mr Feder’s coercive control and advised the case worker that she had made a police report about Mr Feder’s threat at the function of 25 February 2021.

24. The applicant appeared before the Tribunal by video on 30 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend, Ms Claire Letellier, by video from France.

25. At the Tribunal hearing, Ms Souris confirmed that her relationship with Mr Feder ended in 2021 due to family violence. She had been in contact with the Immigration Advice and Rights Centre, but had not informed the Department of the family violence. The Tribunal encouraged the applicant to seek migration advice from a reputable agent about her options if she wished to continue living and working in Australia.

26. The Tribunal discussed the limited scope of the review and explained that Schedule 2 of the Regulations does provide a pathway for temporary visa holders who experience family violence to apply for permanent visas in certain circumstances. The sponsor for the visa must be the perpetrator of the violence. However, the provisions do not apply to Subclass 186 visa applicants. Furthermore, applications for permanent visas relating to family violence must be first assessed by the Department and do not fall within the scope of the review before the Tribunal.

27. Ms Letellier told the Tribunal that she and Ms Souris attended the party on 25 February 2021 to celebrate the Jewish festival of Purim. Mr Feder arrived at the party and Ms Letellier witnessed him threaten Ms Souris. He said he wanted to ruin her.

28. I accept that Ms Souris made a combined application for a Subclass 186 visa with Mr Feder when they were in a relationship. That relationship ended before the visa application was assessed by the Department. I understand that Ms Souris is dismayed that her application for a permanent visa was linked to Mr Feder and the protections against family violence in the Regulations do not extend to her circumstances. However, the Tribunal does not have the discretion to waive the requirement to meet cl 186.311 and must find that Ms Souris is not the member of a family unit of a person who holds a Subclass 186 visa.

29. The applicant has only sought to satisfy the secondary criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the primary criteria or other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

30. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Sheridan Aster
    Member