To (Migration)

[2019] AATA 5414

To (Migration) [2019] AATA 5414 (16 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thu Truyen To

CASE NUMBER:  1715617

DIBP REFERENCE(S):  BCC2015/1961397

MEMBER:Russell Matheson

DATE:16 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

Statement made on 16 August 2019 at 7:55am

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – relationship ceased – family violence allegations – non-judicially determined claim – assessment of independent expert –claim not established – decision under review affirmed           

LEGISLATION

Family Law Act 1975
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 100.221; rr 1.21-1.25

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 10 July 2017 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam, born in June 1979. She applied for the visa on 19 May 2014 on the basis of her relationship with her sponsor. At that time, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The applicant was granted a Partner (Provisional)(Class UF) Subclass 309 visa on 13 January 2015 on the grounds of being in a spousal relationship with an Australian citizen sponsor.

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.100.221, 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.100.221(4)(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.100.221 because they were not satisfied the applicant was the spouse of the sponsor.

5. The applicant appeared before the Tribunal on 9 May 2019 to give evidence and present arguments.   

6. The applicant was represented in relation to the review by her 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 her sponsor has ceased, and she has been the victim of family violence.

9. The applicant was granted a Partner (Provisional)(Class UF) Subclass 309 visa on 13 January 2015 on the grounds of being in a spousal relationship with an Australian citizen sponsor. Having regard to the entirety of evidence before it and the evidence submitted to the Department, the Tribunal is satisfied that before the relationship broke down, the applicant and the sponsor did establish a joint household, represented themselves to others as being in a genuine relationship, established joint financial undertakings and had a mutual commitment to the relationship which they considered to be a long-term one. The Tribunal is satisfied that they were spouses.

10. On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a spousal relationship and that this relationship has ceased at the time of this decision. 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 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).

12. In the present case the applicant is seeking to 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 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.

14. 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 and legislative instrument IMMI 12 /116.

15. 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).

16. The applicant provided to the Department the following documents in support of her family violence claim:

    ·Form 1410 statutory declaration completed by the applicant dated 7 July 2016;

    ·Form 1410 statutory declaration completed by a social worker from the Northern Settlement Services dated 1 August 2016;

    ·Medical history from the applicant’s doctor for the period 5 May 2016 to 12 July 2016.

17. 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.

18. Clause 1.23(10)(c)(i) states that if an application for a visa includes a non-judicially determined claim of family violence and the Minister is not satisfied relevant family violence has occurred then the Minister must seek the opinion of an independent expert (IE).

19. On the basis of the non-judicial evidence provided, it was not considered by the delegate that the applicant had suffered relevant family violence. The applicant was referred to an IE on 14 October 2016, who found that the applicant had not suffered relevant family violence as defined in r.1.21 of the Regulations.

20. In accordance with the Department’s duty to afford procedural fairness, the applicant was notified on 16 December 2016 of the IE’s opinion and she was subsequently invited to comment prior to a decision being made on her visa application.

21. The applicant provided to the Department the following documents on 15 February 2017:

    ·Undated response from the applicant;

    ·Letter of support provided by Northern Settlement Services Limited, dated 1 February 2017;

    ·Letter from the applicant’s doctor dated 1 August 2016.

22. The delegate considered the abovementioned submissions provided by the applicant and was not satisfied that the applicant had provided additional information or new evidence to support her claims of family violence that were not previously provided to the IE and addressed at the time of her interview.

23. The applicant was informed by the Department that her claim of family violence could only be considered for referral to the IE for reassessment if she provided new evidence that is relevant to her claim of family violence.

24. The delegate did not refer the matter back to the IE because he was not satisfied the applicant had provided new evidence.

25. At the start of the Tribunal review hearing, the Tribunal asked the applicant if she could provide any new evidence in regard to family violence being perpetrated against her by the sponsor. The applicant provided the following document in support of her family violence claim:

    ·     A submission from Northern Settlement Services Limited dated 28 February 2019 stating that the applicant had suffered family violence perpetrated by her sponsor.

26. The Tribunal considered the abovementioned submission from the Northern Settlement Services provided by the applicant and was not satisfied that the applicant had provided additional information or new evidence to support her claims of family violence that were not previously provided to the IE and addressed at the time of her interview.

    Has the applicant suffered family violence?

27. The applicant gave evidence at the review hearing that she suffered mental, not physical, injuries as a result of the sponsor’s alleged abuse. The applicant further stated that there were no witnesses to the family violence that had been perpetrated by the sponsor. The applicant informed the Tribunal that she would feel ashamed to return to Vietnam and her family would also be ashamed. The Tribunal found the applicant’s evidence to be vague and lacked detail when describing her claims of family violence allegedly perpetrated by her sponsor. 

28. The applicant also provided documents including the following, in regard to family violence, to the Tribunal:

    ·     A submission from Northern Settlement Services Limited dated 28 February 2019 stating that the applicant had suffered family violence perpetrated by her sponsor;

    ·     A letter from the applicant’s neighbour dated 8 June 2016 recommending the applicant and sponsor seek counselling in regard to their marriage;

    ·     A second letter from the applicant’s former neighbour dated 6 February 2017 in regard to her knowledge of the parties’ relationship.

29. Where the Tribunal is not satisfied that the alleged victim has suffered family violence despite the provision of the requisite evidence, the Tribunal must seek the opinion of an IE about whether the alleged victim has suffered family violence: r.1.23(10)(c). The Tribunal must take as correct the opinion of the IE as to whether the alleged victim has suffered domestic violence: r.1.23(10)(c), and if the opinion is that the alleged victim has suffered relevant domestic violence, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence for the purposes of the relevant criterion: r.1.23.

30. The Tribunal notes that previously in this case, the Minister’s delegate was not satisfied relevant family violence had occurred and referred the case to an IE on 14 October 2016. That IE found that the applicant had not suffered family violence (as defined in r.1.21(1) of the Regulations).

31. Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of r.1.23 that the applicant has suffered relevant family violence. The applicant was vague and her evidence lacked detail when describing the family violence perpetrated against her by the sponsor. In accordance with that regulation, the Tribunal sought the opinion of an IE.

32. On 10 July 2019, the IE from LSC Psychology provided an opinion that the applicant had not suffered relevant family violence. The IE stated the following:

    ·    Overall, the applicant could not recall some of the key details of her relationship (such as the year it started and the year it ended). Her account about alleged physical and sexual abuse has changed over time, with the applicant seemingly described more severe incidents during the current assessment. The applicant is not considered consistent or reliable and, in the absence of any supporting documentation from the time of the alleged abuse, there is no convincing evidence that she suffered relevant family violence that led her to feel fearful or apprehensive about her wellbeing or safety. It is therefore the opinion of the IE that the applicant does not meet the required provisions for family violence as defined by regulation 1.21 of the Migrations Regulations 1994.

33. On 10 July 2019, the Tribunal wrote to the applicant pursuant to section 359A of the Act, inviting her to comment on or respond to information by 24 July 2019.

34. The applicant replied on 18 July 2019 by stating that she disagreed with the IE opinion and outlining various instances of family violence and correcting some dates given at interview in regard to incidents that had occurred during the relationship. The Tribunal accepts that the applicant may disagree with the IE’s opinion but that the applicant’s response does not raise any new claims and there is no evidence provided by her or before the Tribunal to establish that the IE opinion is not valid.

35. The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an IE who is a person suitably qualified to make the assessment; the IE is an employee of an organisation specified for this purpose; and the assessment was properly made. Under r.1.23, the Tribunal is required to take as correct an IE’s opinion, properly made.

36. Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.

37. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.100.221(4)(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

38. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

    Russell Matheson
    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.