Stafford (Migration)

[2019] AATA 4653

Stafford (Migration) [2019] AATA 4653 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Brendan Jason Stafford

CASE NUMBER:  1825294

DIBP REFERENCE:  BCC2016/1563023

MEMBER:Rosa Gagliardi

DATE:13 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2019 at 3:03pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – relationship ceased – family violence claims – claim of harassment – insufficient evidence – evidence doesn’t meet requirements – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 1, Schedule 2 cl 801.221, rr 1.23, 1.24, 1.25

CASES

Guven v MIMIA [2006] FMCA 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 Immigration on 14 August 2018 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 27 April 2016 on the basis of his relationship with his sponsor, Ms Emily Doyle. 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 relationship had ceased and the applicant had not demonstrated that he met any of the alternative provisions such as the family violence provisions.

5. The applicant appeared before the Tribunal on 13 August 2019 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. The provisions of cl.801.221 indicate that a genuine partner relationship within the meaning of the Act must have existed before the relationship ceased and the applicant would have otherwise met the criteria in cl.801.211.  This means that, while the claims of family violence do not have to cause the cessation of the relationship, the relationship which has ceased must have been one which would otherwise have met the requirements of the relevant legislation.

10. This approach was approved in the case of Guven v MIMIA [2006] FMCA 311 at [22]-[26] where Harnett FM found that when considering the grant of a Subclass 100 (Residence) visa, it was open to the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a spousal relationship within the meaning of the Regulations, and only where it found that such a spousal relationship existed, was it required to make a further finding in relation to claims of domestic violence (as it was then referred to).

11. Therefore before assessing whether the applicant has suffered relevant family violence, the Tribunal must assess whether at any point of time the applicant and the sponsoring partner were in a spousal relationship within the meaning of the Regulations, regardless of whether the applicant had previously been granted a subclass 820 visa.

12. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship.  Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

13. The Tribunal has had regard to the information before it and on the basis of the applicant’s credibility about the relationship having been genuine and continuing, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The 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.

14. The applicant has claimed that the relationship ended on 22 November 2017, even though the applicant had been hoping to get back together with Ms Doyle.

15. 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).

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. At the time of hearing the Tribunal explained to the applicant that the requirements for making a non-judicially determined claim of family violence were prescriptive and that it was in the applicant’s interest to refer to his migration agent or a migration agent to seek assistance in respect of what these requirements under Schedule 1 are.  Given the Department made its decision on 14 August 2018 and the applicant was on notice that his sponsorship had been withdrawn, the Tribunal would have thought that the applicant would have had his documentation under Schedule 1 prepared for the hearing.  This is particularly so as it appears that the applicant is represented. 

18. Moreover, the Tribunal sent the applicant on 8 December 2018 a s.359A/s.359(2) letter advising that it appeared that the applicant did not meet the requirements of the visa because sponsorship had been withdrawn.  The letter also referred to the exceptions relating to family violence.  At the time the applicant sought an extension to provide additional time to submit documents and make his case.  He was given until 14 February 2019 to provide any additional material.  The Tribunal considers that the applicant has been granted a reasonable period within which to provide evidence to properly establish a non-judicially determined claim of family violence as required by the regulations.

19. In any event, the Tribunal provided the applicant with an additional further period to make out his family violence claims and to consult with his migration agent about the requirements after thearing.

20. 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.

21. 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 IMMI12/116).

22. 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). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).

23. The applicant has submitted a statutory declaration which does meet the requirements of r.1.25.  It names the alleged perpetrator of family violence and sets out the instances of the claimed family.  The applicant has declared on Form 1410:

    ·The former sponsor lost her temper and became abusive;

    ·On 5 August 2017 one of the applicant’s friends was having a bbq and he was looking forward to attending but his sponsor stated that she did not want to go.  When the applicant stated that that was fine but he wanted to go on his own, the sponsor “reacted abusively, throwing plates and glasses around the kitchen resulting in them getting broken”.  The applicant claims that he then proceeded to walk out the front door and she started throwing the plates and glasses at him as he was walking out;

    ·On 10 September the applicant and sponsor were heading out for a drive when the sponsor asked him when she asked him where to go. The applicant responded that he did not mind and asked the sponsor where she might like to go.  All of a sudden she began shouting abusive language at the applicant and started hitting him and she and took off driving really erratically and dangerously.  The applicant asked her to stop and eventually she drove back home;

    ·There have been many occasions where he experienced this violence but the applicant cannot recall the dates;

    ·There was another time when the sponsor got so angry that she threw a can of drink at him which he dodged but the can hit the TV breaking it.  The applicant does not have a date for this incident;

    ·Mr Patrick Hamilton was a witness to a situation where the sponsor became violent and a statutory declaration by Mr Hamilton has been submitted supporting the applicant;

    ·The violence had a big impact on the applicant.  He would be fearful that things would escalate out of control some day and he would get injured or even worse;

    ·He would be worried about going home as he would not know how he would be treated that evening.  This violence would cause him to be anxious and emotionally distressed.  It affected his sleep and work constantly, and it made life difficult to concentrate on the simplest of things.  He was fearful of mentioning he was meeting up with friends because he wouldn’t know what reaction he would get.

24. A non-judicially determined claim of family violence also requires that in addition to his own statutory declaration, the applicant is required to provide two types of evidence by competent persons as set out under Schedule 1, providing prescribed information.  The current instrument, IMMI12/116 specifies that a minimum of two different types of the following be submitted:

    ·a medical report, hospital reports, discharge summary or statutory declaration made by a registered medical practitioner or nurse, acting in that capacity;

    ·a report, record of assault, witness statement or statutory declaration made by a police officer;

    ·a witness statement made by someone other than the alleged victim or a police officer during the course of a police investigation;

    ·a report or a statutory declaration by a child welfare authority officer or a child protection authority officer;

    ·a letter or assessment report (on letterhead) from a women’s refuge or a family violence crisis centre;

    ·a statutory declaration made by a member, or person eligible to be a member of the Australian Association of Social Workers who has provided counselling in that role to alleged victim;

    ·a statutory declaration made by the alleged victim’s treating registered psychologist;

    ·a statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website;

    ·a statutory declaration or letter (on letterhead) made by a school counsellor or principal acting in that capacity.

25. The applicant initially submitted a letter from Ms Karen Jones, Awakened Ones, Catalyst for Change, Development and Personal Growth, dated 12 February 2019.  Ms Jones wrote:

    I met Jason last year when he came to see me for a ITA session on 27 Nov 2017.  He came to me distressed and emotional regarding the sudden break up of (sic) his then girlfriend.  In the client information sheet (that all clients need to fill out when first seeing me) there is a question where I ask the reason for coming to see me – Jason wrote ‘relationship breakup’.

    While I do not have a degree in psychology, I have seen hundreds of clients.  From a professional perspective I could see that Jason was in a state of shock and disbelief at what had just occurred with his girlfriend suddenly breaking up with him.  It was unexpected and from what he said to me quite sudden.  Jason was in tears telling me and deeply affected by the unexpected turn of events.  It affected his sleep, work and health.

    I felt from Jason and the subsequent session he had with me that he is a genuine heartfelt person who struggled to understand why the sudden turn in events with his girlfriend had occurred.  There did not appear to be a logical explanation or anything leading up to the break up to indicate to Jason that something was wrong between them…

26. As pointed out at hearing this letter was not in the form of a statutory declaration.  Nor is

    
    

    Ms Jones, by her own account, a registered psychologist who has treated the applicant while performing the duties of a psychologist.  There is nothing to indicate that Ms Jones is a social worker either.  This in itself means that the letter cannot meet the requirements, however, the Tribunal notes that it also does not include the detail required under Schedule 1, that is:

    ·State in their opinion the alleged victim was subject to family violence, and

    ·Details the reasons for the opinion, and

    ·Identifies the alleged perpetrator.

27. The letter makes no mention of family violence.  As such the Tribunal is unable to accept Ms Jones’ letter as a part of a valid non-judicially determined claim of family violence.

28. The applicant has, after the hearing, and after the Tribunal noted at hearing that his claims had as yet not been made out as required and that he ought to seek assistance, provided a letter from social worker, Ms Bronwyn Gorringe, dated 2 September 2019.  The letter is not, however, in the form of a statutory declaration as required by r.1.24. 

29. While Ms Gorringe is a member of the Australian Association of Social Workers, apart from it not being set out as a statutory declaration, the letter has other limitations which mean it does not meet the requirements of 1.24.  From the letter it is clear that the applicant only met with the applicant “recently” and it is not clear that she has “provided counselling or assistance to the alleged victim while performing the duties of social worker”.  The applicant has not has not been in a therapeutic relationship with the social worker, but this is not surprising given that the applicant has had little appropriate advice about submitting a valid non-judicially determined claim of family violence.  The report was obtained, but not exclusively, for the purposes of the review. 

30. The letter from Ms Gorringe also falls short, in the view of the Tribunal, of the requirements of r.1.24 because it is not evident that she is making a firm finding that in her opinion, the applicant was subject to family violence and the reasons for any such opinion are not detailed in a clear manner.  Ms Gorringe writes, “I would comfortably assume that this presentation is due to the family violence, although I have never met Jason before the relationship the way and manner he spoke of the relationship and the occurrences seem to be the root of the impacts discussed earlier…In summary I am agreeable to support
    Mr Brendan Jason Stafford (sic) claim of family violence in the relationship with Ms Emily Doyle and can reasonably assess there has been a number of impacts for Mr Brendan Jason Stafford”.  While the Tribunal does not find that the weakness in Ms Gorridge’s opinion determinative of the review, the letter fails in respect of key aspects under Schedule 1 that require the letter to have been in the form of a statutory declaration and for the applicant to have been in a therapeutic relationship with the social worker.

31. The applicant’s migration agent prepared a submission dated 13 February 2019, detailing other instances of family violence, including taking his pets away and of the sponsor’s parents causing mental stress and interference.  The agent wrote “Mr Brendan clarifies that Emily’s parents have constantly tried to manipulate their daughter throughout the relationship and more since mid 2017 so that she discontinues the relationship.  He further confirms that the parents did not stop interfering or troubling even after Ms Emily left the house.  Especially, Ms Emily’s father would turn up to the house without prior notice and ask for Emily’s items or pets or investigate on (sic) Mr Brendan’s absence in the house”.  It is not for the migration agent, however, to detail the forms of family violence alleged.  These matters needed to be addressed by the competent persons who were providing the necessary evidence to make a non-judicially determined claim of family violence. 

32. The Tribunal has had regard to the police complaint made by the applicant summarising the harassment by the sponsor’s father by coming to the house and leaving notes on the door to ask for household items, but there is no evidence that the sponsor’s father was charged with any offence or that the police pursued the matter.  In her submission the agent writes that the applicant was “hoping that the relationship will continue to be genuine as Ms Emily was by his side throughout, so he thought not to make a huge issue out of Ms Emily’s unusual behaviour”.

33. The Tribunal has also taken into account the statutory declaration by Mr Taylum Munro, a housemate of the applicant confirming the sponsor’s father’s actions. 

34. The Tribunal also has had regard to the statutory declaration submitted by Mr Patrick Hamilton declaring that the sponsor’s father showed up at the house unannounced, leaving notes and asked Mr Hamilton when the applicant would return home, and what time he started and finished work. 

35. According to Mr Hamilton, “He was calling around demanding items from the house”.  The migration agent in her submission concluded, “The appeal application of Mr Brendan being constantly under pressure and suffering family/domestic violence is highly justified because he has evidences that the friend and cousin witnessed the harassment, unreasonable abuse and constant mental pressure…the visa was therefore refused by the decision maker on unjustifiable grounds”.  These statutory declarations and other materials submitted are, however, extraneous to the requirements of r.1.24 in making a non-judicially claim of family violence.  The Tribunal can only rely on evidence that has been submitted as prescribed under Schedule 1.

1. The Tribunal appreciates that the applicant will be disappointed with this outcome given he initially came to Australia on 23 August 2012 on a skilled visa, a subclass 417, and held a subsequent skilled visa after that.  The applicant considers that he has contributed to Australian society and that it will be difficult to start over.  The Tribunal appreciates that this is the case but it does not have the discretion to waive the requirements of the r.1.23.

   Conclusion

2. As both the letter from Ms Jones and Ms Gorringe are not compatible with the requirements of r.1.24, the evidence presented does not meet the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23.

3. 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

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

   Rosa Gagliardi
   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.