Stephen (Migration)

[2024] AATA 3886

Stephen (Migration) [2024] AATA 3886 (26 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rhea Emily Stephen

REPRESENTATIVE:  Mr Ernie Hu (MARN: 1383659)

CASE NUMBER:  2002382

HOME AFFAIRS REFERENCE(S):          BCC2017/1487075

MEMBER:Andrew McLean Williams

DATE:26 September 2024

PLACE OF DECISION:  Brisbane

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 26 September 2024 at 1:44pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) –  applicant and sponsor were in a genuine de facto relationship – victim of family violence – evidence presented meets the requirements of regulation 1.24 – family violence incidents occurred during the relationship – decision under review remitted  

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.21, 1.22, 1.23,1.24, Schedule 2, cl 801.221  

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 31 January 2020 to refuse to grant the Applicant Ms Rhea Emily Stephen a Partner (Residence) (Class BS) visa pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant applied for the visa on 24 April 2017 on the basis of her then relationship with her sponsor, Mr Romeos Stefanos Allende. 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 (Cth) (‘the Regulations’).

3. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are also applicants for the visa need then only satisfy the secondary criteria. Relevantly to this matter the primary criteria include clause 801.221, which requires the Applicant to be either 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: clause 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 clause 801.221 because the Applicant had not provided the required evidence of her being the victim of family violence.

5. The Applicant was represented in relation to the review by Mr Ernie Hu of TIA lawyers.  Mr Hu has provided the Tribunal with a written submission dated 27 May 2024.  The submission includes relevant supporting documents, including a statutory declaration from Ms Stephen.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, the Applicant claims the relationship with her visa sponsor has ceased, and she was the victim of family violence during that relationship.

8. The Applicant originally applied for a Subclass 801 visa on 24 April 2017 on the basis of her then de-facto relationship with her sponsor Mr Romeos Allende, who is an Australian citizen.  The Applicant was granted a Subclass 820 visa on 5 January 2018.  The Tribunal has had regard for the information contained on the Departmental file and is now satisfied that the Applicant and Mr Allende were a genuine de-facto couple.

9. On 8 April 2019 Mr Allende advised the Department that his relationship with the Applicant had irretrievably broken down.  On 31 May 2019, the Applicant similarly advised the Department that her relationship with her sponsor had ended, yet also advised that the breakdown had been because of problems in the relationship caused by family violence.   

10. 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.

11. Under regulation 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 regulation 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: regulation 1.23(3), (5), (7), (12), (14).

12. 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?

13. Under regulation 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 regulation 1.24 is provided.

14. The Applicant in this case is seeking to rely on evidence referred to in regulation 1.24 – namely, a statutory declaration under regulation 1.25 as well as evidence of a type specified by the Minister for these purposes.

15. A statutory declaration under regulation 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: regulation 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: regulation 1.25(3).

16. Here, the Applicant has provided a statutory declaration, declared by her on 24 May 2024.  In the statutory declaration Ms Stephen indicates that her former partner Mr Allende had anger management issues and she had been encouraging him to seek help from a psychologist.  There is supporting evidence sufficient enough to now show that.  Eventually, Mr Allende’s refusal to undergo counselling for his anger was the reason why the Applicant says that their relationship ended.

17. During 2018, before their relationship had ended, Ms Stephen says that she was subject to frequent angry outbursts from Mr Allende, who would also engage in coercive, controlling behaviours, such as withholding access to their vehicle, and threatening the Applicant that her visa to remain in Australia was dependent on her being compliant with the needs and wishes expressed by Mr Allende, who threatened to have her ‘expelled from Australia’ if she did not accede to his wishes.  The Applicant also says that she was oftentimes forced to engage in sexual activity against her wishes. 

18. On 10 December 2018 the Applicant says that she had to barricade herself in the bathroom because Mr Allende would not leave her alone, and she was very fearful of his angry rage at the time, as he stood outside the locked bathroom, pounding on the door, and demanding that she open it.  The Applicant has produced text messages sent by her from inside the bathroom to a friend, sent at the time of this altercation.  These text messages are corroborative of Ms Stephen’s claims about the incident on 10 December 2018. 

19. In addition to her own statutory declaration Ms Stephen has produced a report from her general practitioner, a Dr Chua, and from her psychologist, Ms Mioche.  The information from Ms Stephen’s doctor and psychologist is corroborative of Ms Stephen having sought their assistance for symptoms of anxiety and distress after having been the victim of family violence, as described.

20. The Tribunal records that it is satisfied that the evidence presented meets the requirements of regulation 1.24. As such, a ‘non-judicially determined’ claim of family violence has been made out, under regulation 1.23.

    Has the applicant suffered family violence?

21. Having considered all of the evidence before it, the Tribunal is satisfied, for the purposes of regulation 1.23, that the Applicant has suffered family violence committed by the Sponsor that occurred whilst the parties were still in the relationship. As such, the Applicant is taken to have suffered family violence in the relevant sense: regulation 1.22.

22. 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 clause 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

23. 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:

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

    Andrew McLean Williams
    

    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.