Wang (Migration)

Wang (Migration) [2023] AATA 680 (14 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yuehai Wang
CASE NUMBER:  1906257
DIBP REFERENCE(S):  BCC2018/4586799
MEMBER:Deputy President Justin Owen
DATE:14 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 14 March 2023 at 11:11am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – relationship with the visa applicant had ceased – sponsor had withdrawn her sponsorship – no power to summons a person who is not in Australia – applicant is no longer the spouse or de facto partner of the sponsor – applicant has not made a valid claim for family violence as per the Regulations – applicant has made neither a judicially determined nor a non-judicially determined claim of family violence – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.24, 1.25, Schedule 2, cls 820.211, 820.221, Schedule 1
CASES
Doan v MICMSMA [2022] FedCFamC2G 405
MIAC v Pham [2008] FCA 320
STATEMENT OF DECISION AND REASONS

The applicant applied for the Subclass 820 temporary partner visa on 19 October 2018 on the basis of his relationship with his Australian permanent resident sponsor, Ms WeiWei Cui.
This is a review of a decision of a delegate of the Minister for Immigration on 11 March 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (the Act).
The applicant sought review of the delegate’s 11 March 2019 refusal decision to this Tribunal for review on 17 March 2019.
The matter was constituted to Member Nick McGowan on 24 August 2021. On 26 August 2022 the matter was reconstituted to Deputy President (DP) Justin Owen after Member McGowan departed the Tribunal.
The Tribunal has before it the Department’s file relating to the applicant, and its own file. The Tribunal notes the applicant provided the Tribunal a copy of the delegate’s refusal Decision Record (dated 11 March 2019) which contains the information the sponsor withdrew her sponsorship of the Subclass 820 temporary partner visa on 4 January 2019.
As the Tribunal was unable to make a favourable decision based on the information before it alone, the applicant was invited (on 25 August 2021) and appeared before a hearing into the review conducted 14 September 2021 in Melbourne. DP Owen has reviewed the full transcript and audio of the hearing held before Member McGowan on 14 September 2021. The applicant is unrepresented.
At the hearing of 14 September 2021 two witnesses also provided oral evidence, Mr Ronald William Livingstone, and Mrs Judith Anne Groube. Mr Livingstone gave oral evidence as to the applicant’s good character. In response to questioning, Mr Livingstone told the Tribunal he did not know the applicant’s wife and had never met her. The Tribunal asked Mr Livingstone whether he had witnessed any family violence perpetrated against the applicant by his sponsor. Mr Livingstone told the Tribunal he had not. As Mr Livingstone had another engagement, he did not remain in the hearing once he concluded his oral evidence. Mrs Groube told the Tribunal she is a mental health social worker. Mrs Groube confirmed the applicant is a patient of Mrs Groube. Mrs Groube demonstrated an understanding of the claims made by the applicant in respect to his previous relationship and demonstrated an understanding of his efforts to obtain certain documents in support of his review. Mrs Groube remained for much of the hearing. The Tribunal understood Mrs Groube may be able to assist the applicant in understanding what was communicated to him during the hearing including assisting him in his understanding of what he is required to do in providing certain information to the Tribunal, in particular, information in respect to his claim of having suffered family violence perpetrated by his sponsor.
During the hearing the Tribunal addressed the applicant’s pre-hearing request the Tribunal issue three summonses. The applicant requested the Tribunal summons a report in respect to a visit made to the parties’ home on 25 December 2018 by Queensland Police: police report number QP1802418124. As part of that request, the applicant requested the Tribunal summons Queensland Police Officer “Con Wayne Hapi” who the applicant claims referred him to a “Domestic Violence service” (1800 811 811) and “MensLine” (1800 600 636). The applicant has requested the Tribunal summons a record of a telephone call made by him on 25 December 2018 to Domestic Violence Line (1800 811 811) who the applicant states advised him to call 1800 474 753. The Tribunal notes 1800 474 753 is a telephone number for a “Homeless Connect” service. The applicant has also requested the Tribunal summons the “Department of Housing and Public Works” line (1800 4747 753). The applicant states that when he called this service, he was referred to call 204 886 613 14.
The above aspects are outlined in several summons requests (some duplicate) received by the Tribunal from the applicant, and in addition, outlined in detail in an email from the applicant addressed to an officer of the Registry dated (and received) 28 August 2021.
During the hearing of 14 September 2021, the Tribunal indicated to the applicant it would not issue the summonses as currently requested. The Tribunal explained to the applicant that he should make reasonable efforts to obtain the information himself. In addition, the Tribunal indicated that the applicant should also outline for the Tribunal how the information and related documents he has asked the Tribunal to summons are directly relevant to the Tribunal’s consideration of a criterion (or criteria) he seeks to meet, including for the purposes of making a valid non-judicial claim of having suffered relevant family violence.
The applicant again wrote to the Tribunal on 15 September 2021 repeating his request for the Tribunal to issue the same summonses to the Queensland Police.
On 30 September 2021 the applicant provided a copy of the Queensland Police report number QP1802418124 from the visit by officers to the home he shared with his former sponsor on 25 December 2018. The applicant had been provided the report following an application he made to the Queensland Police for access to the report under the Information Privacy Act 2009 (Qld). The partially redacted report, which includes a Domestic Family Violence (DFV) Report, in fact lists the sponsor as the aggrieved in this matter and the applicant as the respondent. The DFV report states that the sponsor attended the Mareeba Police Station on 25 December 2018 to report the applicant’s actions (which involved an argument and the applicant slapping himself whereby she left their residence to stay with a friend). The DFV report states the Police attended the applicant’s residence and spoke with him where he provided a version of events consistent with that of the sponsor. He stated to the Police that it was OK for the sponsor to return home and he would be on good behaviour. The report states the Police did not believe it was necessary or desirable to make an application for a domestic violence order to protect the sponsor. The Police offered both the sponsor and the applicant referrals.
The applicant also provided correspondence he received from the Queensland Police pertaining to his desire to summons Con Wayne Hapi who visited his residence on 25 December 2018 to testify in his case. The applicant appears to claim that the visiting Police referred him to the DV service line (after he was instructed to leave the sponsor’s residence) as he was told he was suffering from family violence. The correspondence stated Con Hapi was no longer with the Queensland Police but now resided overseas in New Zealand. The Tribunal notes the applicant has provided a copy of the relevant Police report from Con Hapi for the purposes of making a claim of non-judicial family violence. The Tribunal notes that the type of evidence required as outlined in IMMI 12/116, Schedule 1 in relation to a Police report is a report, record of assault, witness statement or statutory declaration made by a Police officer. Con Hapi’s report has been provided. The Tribunal would also note that it has no power to summons a person who is not in Australia: s363(4) of the Act. The Tribunal subsequently has not issued a summons to Con Hapi in New Zealand.
The Tribunal would note that the applicant would appear to have subsequently been able to procure all the documents he sought to summons other than the summons for Con Hapi to appear as a witness at his hearing.
During the Tribunal’s hearing the applicant asked the Tribunal to release to him a full copy of a letter from his sponsor withdrawing her sponsorship (dated Monday 31 December 2018). The Tribunal reminded the applicant the Tribunal’s Registry had already released the letter (with redactions) to him on 3 September 2021. The applicant expressed the concern the information redacted may be considered adverse material. The Tribunal explained that if that information were adverse (or may be adverse) the Tribunal is obliged to put that information to the applicant formally. The Tribunal made clear the information in the sponsor’s withdrawal letter was the information his sponsor had withdrawn her sponsorship. That is not new information, and it is information contained in the delegate’s Decision Record (dated 11 March 2019), which the applicant provided this Tribunal as part of the review.
On 30 June 2022 the applicant wrote to the Tribunal providing evidence concerning an unrelated work injury as well as a mental stress test dated 22 December 2021 undertaken by Dr Michael Breitkreutz. The consultation record states that the applicant was prescribed Amitriptyline and psychology was considered for support.
On 15 October 2022 the applicant served on the Tribunal a Notice of Non-Party Disclosure from the Cairns Registry of the District Court of Queensland dated 14 October 2022. The document sought for production was the Tribunal’s decision. The Tribunal was under no obligation to produce the document as quite simply it did not at that time exist. On 21 October 2022 the Tribunal wrote to the applicant advising him that it did not hold the document he was seeking because a decision had not yet been made in his case. The Tribunal also drew to his attention s 66 of the Administrative Appeals Act 1975 which provides that Members and staff of the Tribunal must not be required to produce certain documents to a court except in certain circumstances. The applicant acknowledged receipt of the Tribunal’s letter on 25 October 2022.
On 22 November 2022 the Tribunal wrote to the applicant noting that Member McGowan had departed the Tribunal and the case had been reconstituted to DP Owen. The Tribunal noted it intended to move to make a decision on the case. The Tribunal invited the applicant to provide any further evidence he wished to rely upon in support of his case, including in relation to his claim of non-judicial family violence. The Tribunal stated that any submissions should be made by 6 December 2022.
The applicant responded to the Tribunal on 22 November 2022 requesting a range of forms from the Tribunal. The applicant also requested a further extension to make submissions as he had undergone foot surgery on 18 March 2021 and 7 July 2022, stating this had impacted his health and finances. The Tribunal, noting it was now well over a year since the applicant’s hearing and his earlier date of 30 September 2021 to make submissions, responded to the applicant on 23 November 2022 declining his request for a further extension of time for submissions. The Tribunal responded to the applicant’s other matters raised on 25 November 2022.
The applicant made a request on 27 November 2022 for access to documents under the Freedom of Information Act 1982. The documents were recordings/reports of his contact to the DVConnect service since 2018. The Tribunal contacted the applicant by telephone and informed him the Tribunal was not in possession of these recordings/reports and suggested he contact DVConnect directly. The applicant subsequently withdrew the FOI request on 28 November 2022.
On 6 December 2022 the applicant provided a written submission pertaining to his claims of family violence with a range of exhibits. The applicant conceded his relationship with the sponsor broke down on 26 December 2018. The applicant stated that he nevertheless satisfied the requirements for the grant of the Partner visa based upon the non-judicial family violence provisions: cl 820.221(3)(b)(i).
The applicant submitted that he had provided the requisite evidence to make a valid claim of non-judicial family violence. The applicant provided:
· A signed statutory declaration;
· The Queensland Police report number QP1802418124;
· Correspondence from DVConnect.
He also stated that as the social worker Mrs Groube provided oral testimony as a witness at the applicant’s Tribunal hearing of 14 September 2021 this was also evidence of non-judicial family violence.
The applicant in his written submission of 6 December 2022 claimed that his sponsor had committed domestic violence and “because police officers attended the domestic violence incident which was being present”. The applicant asserts that the Police report he provided is evidence that he is the victim of family violence for a number of reasons. They include:
·On 25 December 2018, after the sponsor reported the applicant to the Police, the Police did not “believe it is necessary or desirable to make application for a domestic violence order to protect the aggrieved (the sponsor).”
·The sponsor asked the applicant to move out from their home, a request she repeated to the Queensland Police where she stated he was to move out of the house the next day and she gave the applicant $400 for a motel.
·The Queensland Police officers attending the scene of the alleged incident “believed that the applicant was suffering DV (domestic violence), because Police provided two DV service numbers for the applicant to call.” A copy of the Cairns regional Domestic Violence Service contact brochure the applicant received from the Police was also supplied.
The applicant has also asserted the evidence he provided from domestic violence “service organisations” is also evidence that he is the victim of non-judicial family violence. These included:
·The applicant’s claim that on 25 December 2018 he contacted the DV service line (1800 811 811) and talked with a DV support officer who provided a number at the Department of Housing (1800 474 753) to contact.
·When the applicant called the Department of Housing number he was provided with another number to contact.
·The applicant also talked with a DV service officer at the Cairns Magistrates Court where the officer referred the applicant to call the Men’s Information Line.
The applicant in his submission states the sponsor committed domestic violence, and this violence caused their partner relationship to break down “because on 26 December 2018, the sponsoring partner took the applicant to a motel and do not allow the applicant come back the house again, and since this date the applicant and sponsoring partner’s relationship broken down”.
The applicant claims the sponsor’s statutory declaration of 22 July 2019 (provided to the Tribunal by the applicant) “confirmed that she (the sponsor) committed the domestic violence and the domestic violence caused the relationship broken down.” As evidence of this, the applicant highlights the following paragraph from the sponsor’s statutory declaration:
When I got back home, Yuehai (the applicant) left the house and went to Police, asking them to help him finding accommodation. Police rang me and I told them I would give him $400 cash for a motel. Yuehai then came back to my house and he told me he wanted to stay until January 2019 as he needed to organise something. I insisted that he should go and he stated that we finished off the old relationship but will start a new relationship in the New Year. I clearly told him: “No, we are over as you wish. Don’t waste time on me. I will apply for divorce once I check up with the lawyer.” He said he had somewhere organised tomorrow so I agreed for him to stay one more night….
Yuehai (the applicant) left my home on 26 December 2018 and I told him I wanted no further contact and he was not allowed back my house…
The applicant has also submitted a copy of a Protection Order made by the Mareeba Magistrates Court dated 12 August 2019 that orders the applicant to be of good behaviour towards the sponsor and not commit domestic violence against her. The applicant is prohibited from going to, entering or attempting to enter the premises where his former sponsor resides or works. He is also prohibited from contacting or attempting to contact his former sponsor without written consent of the sponsor or through his legal representatives. This Protection Order remains in place against the applicant until 11 August 2024. The detailed statement of the sponsor seeking the Protection Order was also provided. The statement outlines the applicant’s alleged “coercive control, verbal abuse and intimidation, emotional, cultural and sexual abuse.” The Order was made by consent. The applicant however in his written statement of 6 December 2022 claims he had to agree to the Order because he had to “prevent the sponsoring partner to suicide and had to tolerate her and had to agree to the condition of the DVO.”
FINDINGS
The Tribunal has considered all the evidence before it.
Relevantly in this case, at the time of decision, to be granted a Subclass 820 visa, the applicant must continue to be sponsored by his sponsoring partner (except where exceptions apply).
The applicant confirmed for the Tribunal (during the hearing) that his relationship with his sponsor had ceased and not resumed. This has been confirmed in his subsequent written submissions.
Clause 820.221(3) requires relevantly that the applicant would continue to meet the requirements of cl 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsor has ceased, and at the relevant time, the applicant, or a dependent child of the sponsor or of the applicant or both of them has suffered family violence committed by the sponsor: cls 820.221(3)(a), 820.221(3)(b)(i).
As the applicant’s relationship with his former sponsor has ended, as evidenced by the applicant’s own evidence to the Tribunal, the applicant in this case no longer continues to be sponsored for the grant of the visa by his former sponsoring partner, who in this case is an Australian permanent resident. Accordingly, the applicant does not continue to satisfy the criteria in cl 820.211(2). There is no claim or evidence the applicant meets the requirements of cl 820.211(5) or (6).
The Tribunal has sought to determine whether circumstances existed in which the applicant may continue to be considered for the grant of Subclass 820 visa. The applicant may satisfy cl 820.221 by meeting the requirements of at least one of subcls (2) or (3). These prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsor has ceased. These include: the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children. There is no evidence or claim that the sponsor is deceased. There is no evidence or claim that the applicant and sponsor have children, or any subsequent court order or responsibilities in relation to children. The applicant subsequently does not meet either the death of the sponsoring partner or the responsibilities in relation to children exceptions.

The applicant has claimed he suffered relevant family violence perpetrated by his sponsor. The question before the Tribunal becomes whether the applicant meets cl 820.221(3).
Given the applicant’s own oral evidence as presented at the hearing (and discussed above) the Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the Subclass 820 visa by the sponsoring partner.
In order to permit the applicant every opportunity to present his evidence and arguments as best he can, including in respect to his claim of having suffered family violence, the Tribunal (as previously constituted with Member McGowan presiding) conveyed to the applicant he would be granted whatever time he sought to consider the matters discussed during the hearing, and provide further argument(s) and evidence. The previously constituted Tribunal pointed out to the applicant that the Tribunal is unable to provide him advice, and that he is free to seek professional migration advice from a lawyer or migration agent. The previously constituted Tribunal underscored for the applicant the complexity of the matters before the Tribunal, including the making of a ‘valid claim’ in respect to his claim of having suffered relevant family violence. The Tribunal notes that the previously constituted Tribunal presided by Member McGowan clearly outlined the process of making a valid claim of non-judicial family violence at the applicant’s hearing on 14 September 2021:
MEMBER: Okay. So I’ll keep this as simple as I can. When you’re sponsored for your visa, the sponsorship is a necessary prerequisite for your applicant. Without that there are only a limited number of ways you can continue to be considered for the visa. Essentially, there are three alternatives, (1) whether you have children together with that relationship or orders in respect of any children of that relationship. If you have no children and no orders in respect of children, we look at number 2, which is the death of the sponsor. If the sponsor is alive, we look at number 3. Number 3 is the last section of (3) and that allows you to continue to be considered for the visa should you have suffered family violence perpetrated by your sponsor during the relationship.
In order for you to make, or to progress consideration on the basis you suffered family violence perpetrated by your sponsor you must provide to the tribunal what is called a valid claim. This detail would have been provided to you by the Department in their refusal decision that they gave you when they refused to grant you the visa. To make a valid claim you must provide certain documents, that is certain types of evidence, and those certain types of evidence must be a certain number. So you must provide a statutory declaration from yourself and you must provide two types of evidence that are listed in schedule 1. The types of evidence must be in the form described in the schedule and it must contain the details as specified in the schedule.
If you do not provide the necessary forms with the necessary information then the tribunal has no alternative but to affirm the decision under review. If you do provide the documentation to substantiate a valid claim, the tribunal will then consider the claim. If it is satisfied you suffered family violence, it will send its decision back to the Department for further consideration. The tribunal may also decide to seek the opinion of an expert, in which case, if it seeks that opinion, the tribunal, once it receives that opinion, would be bound by the expert’s opinion. If the tribunal seeks an opinion, you will also have an opportunity to respond to that opinion should it not be favourable before its decision is made.
The Tribunal is satisfied that the applicant was on notice that he was required to make a valid claim of non-judicial family violence. The fact that the applicant has subsequently made submissions that include a statutory declaration signed by the applicant as well as other certain types of evidence is indicative that the applicant was alive to the need to lodge a valid claim.
At the conclusion of the hearing the Tribunal granted the applicant his request to have until 30 September 2021 to provide any further evidence or argument whatsoever.
The Tribunal made clear to the applicant that should he require additional time after 30 September 2021, a request for additional time should be made prior to 30 September 2021. The Tribunal advised that should that date pass and no further evidence or argument(s) are received, the Tribunal would make a decision in the matter without delay.
The Tribunal has subsequently provided the applicant with considerably more time (partially due to the matter being reconstituted) on which to provide evidence and make his submissions concerning his claim to be a victim of non-judicial family violence: well over a year in fact. The applicant has subsequently made detailed written submissions and provided evidence that the Tribunal has considered.
Under reg 1.23 of the Migration Regulations 1994 (Cth) (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 reg 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: reg 1.23(3), (5), (7), (12), (14).
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?
Under reg 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 reg 1.24 is provided.
The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116).
A statutory declaration under reg 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: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).
To make a valid claim of non-judicially determined family violence, the applicant is required to provide to the Tribunal on review a statutory declaration under reg 1.25 and the type and number of items specified in the relevant instrument. At the time of the Tribunal’s decision, the relevant instrument is IMMI 12/116.
The statutory declaration the applicant provides must be a statutory declaration under the Statutory Declarations Act 1959 (Cth). A statutory declaration dated 1 December 2022 and signed by the applicant has been provided to the Tribunal. The Tribunal is satisfied that the statutory declaration meets the requirements for the making of a valid non-judicially determined claim of family violence.
The current specified legislative instrument, IMMI 12/116, specifies that a minimum of two different types of the following evidence be given:
·Medical report, hospital report, discharge summary or statutory declaration made by either a person who is: registered as a medical practitioner and is performing the duties of a medical practitioner, or registered as a nurse within the meaning of section 3 of the Health Insurance Act 1973 and is performing the duties of a registered nurse;
·Either a report, record of assault, witness statement or statutory declaration that is made by: a police officer of a State or Territory, or a police officer of the Australian Federal police;
·A witness statement that is made by someone other than the alleged victim to a police officer during the course of a police investigation;
·Report or statutory declaration made by an officer of: a child welfare authority, or a child protection authority of a State or Territory;
·Letter or assessment report made by: a women’s refuge, or a family/domestic violence crisis centre on the organisation’s letterhead;
·Statutory declaration made by: a member of the Australian Association of Social Workers, or a person who is eligible to be a member of that Association, who has provided counselling or assistance to the alleged victim while performing the duties of a social worker;
·Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist;
·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;
·Statutory declaration or a letter on the school’s letterhead made by a school counsellor or school principal in their professional capacity.
For each type of evidence, the instrument specifies the information that must be included.
The applicant provided a range of different types of evidentiary documentation in support of his claim of non-judicially determined family violence. As noted previously, at the applicant’s hearing the previously constituted Tribunal discussed the requirement that a valid claim of family violence was made when the applicant provided the Tribunal with the documents as set out in the Act and Regulations that contain specific information. The previously constituted Tribunal noted at the hearing that if the applicant did not provide a kind of document specified, with the information required, then he would not have made a valid claim of non-judicially determined family violence and the Tribunal would have no alternative but to affirm the delegate’s decision. The previously constituted Tribunal stated it would consider any further evidence or submissions made post-hearing.
The Tribunal has reviewed the various types of evidentiary documentation the applicant has provided in support of his claim of non-judicially determined family violence. The applicant clearly has not provided the types of evidence as specified in the current legislative instrument.
The applicant has provided the following types of evidence in support of his claim that he asserts meets IMMI 12/116. The Tribunal, for the reasons following, does not accept the applicant has provided a minimum of two different types of evidence that meet the specific requirements of the instrument.
The applicant has provided correspondence from the DVConnect Mensline dated 18 May 2020. The Tribunal has considered whether the correspondence meets the criteria for a letter or assessment report made by a women’s refuge or family/domestic violence crisis centre on the organisation’s letterhead. Schedule 1 of IMMI 12/116 requires that the letter or assessment report states that the alleged victim has made a claim of family violence; and states whether the alleged victim was subject to family violence; and identifies the alleged perpetrator, and details any evidence used to form the opinion.
The Tribunal has reviewed the correspondence from DVConnect. For the purposes of this review, the Tribunal accepts the letter is from a family/domestic violence crisis centre on the organisation’s letterhead. The letter however states that the applicant identified himself as the aggrieved in a family violence matter and identified his wife as being the perpetrator of violence. The correspondence does not, in the Tribunal’s firm opinion, state whether the applicant was in fact subject to family violence. Rather, the correspondence states that it has been the applicant himself who has stated he was subject to family violence. It does not detail any evidence to form an opinion that the applicant was subject to family violence.
The Tribunal is subsequently not satisfied that the correspondence meets the requirements of IMMI 12/116.
The Tribunal has also turned its mind to DVConnect’s correspondence in the context of it potentially being correspondence from a social worker or a registered psychologist that might meet the requirements of the instrument. The Tribunal finds however that the correspondence is not in the form of a statutory declaration. Given the correspondence is not in the correct form, the Tribunal is not satisfied that the correspondence meets the requirements of IMMI 12/116.
The applicant has provided a copy of the Queensland Police report number QP1802418124 from their visit by officers to the home he shared with his former sponsor on 25 December 2018. The applicant had been provided the report following an application he made to the Queensland Police for access to the report under the Information Privacy Act 2009 (Qld). The Tribunal has considered whether the correspondence meets the criteria of IMMI 12/116 for either a report, record of assault, witness statement or statutory declaration that is made by: a police officer of a State or Territory, or a police officer of the Australian Federal Police that identifies the victim, and identifies an alleged perpetrator, and details an incident/s of family violence.
The Tribunal has reviewed the correspondence and report from the Queensland Police. The Tribunal has considered the Domestic Violence Service brochure the Queensland Police provided the applicant as part of its assessment. The partially redacted report, which includes a DFV report, in fact lists the sponsor as the aggrieved in this matter and the applicant as the respondent. The DFV report states that the sponsor attended the Mareeba Police Station on 25 December 2018 to report the applicant’s actions (which involved an argument and the applicant slapping himself whereby she left their residence to stay with a friend). The DFV report states the Police attended the applicant’s residence and spoke with him where he provided a version of events consistent with that of the sponsor. He stated to the Police that it was OK for the sponsor to return home and he would be on good behaviour. The report states the Police did not believe it was necessary or desirable to make an application for a domestic violence order to protect the sponsor. The Police offered both the sponsor and the applicant referrals.
The Tribunal does not accept the correspondence and report meets the requirements of IMMI 12/116. Whilst it constitutes a report made by a police officer of a State, it does not identify the applicant as the victim. Indeed in the report the applicant is identified as the respondent to the claim of family violence. The sponsor is classified as the ‘aggrieved’ in the matter. The report instead suggests that it is the sponsor herself that is identified as the victim in any incident of family violence. The “alleged perpetrator” that has been identified in this report and others is in fact the applicant. The Tribunal considers the report does not detail incidents of family violence and rather suggests it was the sponsor who was fearful for her own well-being or safety based upon the applicant’s actions. This, the Tribunal notes, is reflected in the sponsor’s application of 23 July 2019 for a Protection Order against the applicant, and the subsequent five-year Protection Order against the applicant imposed by the Magistrates Court until July 2024. The Queensland Police report QP1802418124 and the associated Domestic Family Violence Report and Domestic Violence Service brochures provided by the Police clearly do not meet the requirements of IMMI 12/116. The applicant’s claims in his submissions that the “police believed” he was suffering family violence due to them providing him with Domestic Violence service numbers to call; or that the Police “did not apply protection to the sponsoring partner” after she attended the Police Station in December 2018; and the sponsor asking him leave her residence in December 2018 do not meet the requirements of IMMI 12/116. The applicant has also claimed that the phone calls he made to the Queensland Domestic Violence Telephone Service (that appeared on the brochure he was provided by the Queensland Police) constitutes evidence of him being a victim of family violence. The Tribunal notes the claim but would note it does not constitute a Type of Evidence for the purposes of meeting the requirement of IMMI 12/116.
The Tribunal has considered the other pieces of evidence submitted as part of the applicant’s claim to be a victim of non-judicial family violence. The applicant has asserted that other organisations “also believed” he was the victim of family violence, nominating the Department of Housing whom he provided a telephone number for and stated he had contacted. The Tribunal has reviewed the correspondence dated 16 June 2020 from Mr Simon Weaver, the Right to Information Officer at the Queensland Department of Housing and Public Works who states that he cannot confirm any record of a call made by the applicant to the Department’s Homeless Hotline. The Department considers the correspondence does not meet any of the Types of Evidence stipulated in Schedule 1 of IMMI 12/116. The evidence subsequently does not meet the requirements of IMMI 12/116.
The Tribunal has considered the Statement of Aggrieved Person – being the sponsor – dated 22 July 2019 where she sought orders to prohibit the applicant from approaching her and entering her residence and place of employment. The Tribunal also notes the subsequent five-year Protection Order of 12 August 2019, a nationally recognised Domestic Violence Order, prohibiting the applicant from contacting or attempting to contact the sponsor and from going to, entering or attempting to enter where the sponsor lives and works. The order states the applicant must be of good behaviour towards the sponsor and not commit domestic violence against her. The Order remains in place until 11 August 2024. The Statement and Order each are not Types of Evidence that meet the requirements of IMMI 12/116.
The Tribunal has considered the DASS quantitative survey of distress provided by the applicant dated 22 December 2021 and a subsequent consultation record dated 1 March 2022. The applicant’s score suggested extremely severe depression, anxiety and stress. The very brief consultation record from Dr Michael Breitreutz prescribed the applicant some medication as well as “considering psychology for support”. The Tribunal does not consider this is a Type of Evidence stipulated in Schedule 1 of IMMI 12/116. The report does not identify the applicant as an “alleged victim” of family violence and does not detail treatment for mental health that is consistent with the claimed family violence. The Tribunal would note that the applicant has provided extensive evidence of his own health issues since a significant work-related injury, subsequent medical operations and a Queensland WorkCover claim that dates from 2019.
The applicant has also submitted that the oral testimony of the social worker, Mrs Groube who provided oral testimony as a witness at the applicant’s Tribunal hearing of 14 September 2021 was also evidence of his being a victim of non-judicial family violence. Mrs Groube relevantly stated at the hearing:
So then I became aware of Yuehai’s application for his partner visa. He has shown me evidence from the police and from affidavits around the domestic violence that he was the victim of from his wife. I haven’t seen that, I wasn’t present when that occurred, but I have seen evidence that he has from the police, and my understanding is that he is needing time to access that evidence in order that it can be presented to yourself.

The Tribunal notes Mrs Groube’s oral testimony does not meet the requirements of IMMI 12/116 as her evidence was not in the form of a statutory declaration that states in their opinion the alleged victim (the applicant) was subject to family violence, and details the reasons for the opinion, and identifies the perpetrator.
The Tribunal has provided the applicant with the opportunity to provide appropriate evidence in order to make a valid claim. The applicant has not provided evidence in the nature and form required to make a valid claim of judicially determined, or non-judicially determined, family violence. Whilst the applicant has provided a statutory declaration as required under reg 1.25, he has not provided evidence specified by the Minister by instrument in writing for reg 1.24(b) of the Regulations, which requires a minimum of two items of evidence from the list in Schedule 1 and no more than one of each type of evidence listed.
Family violence
Has a claim of family violence been made under the Regulations?
In this case there is no suggestion that there has been court tested evidence. The relevant evidentiary requirements to raise a non-judicially determined claim of family violence are in reg 1.24. This requires a statutory declaration under reg 1.25, and the type and number of items of evidence specified by the Minister (in this case) in instrument IMMI 12/116.
The Tribunal is satisfied that the applicant has provided a statutory declaration under reg 1.25. The Tribunal is not, however, satisfied, for the reasons outlined above, that the multiple pieces of correspondence submitted are the type and number of items of evidence as specified by the Minister in IMMI 12/116. The applicant has not gone on to provide the Tribunal with ‘types of evidence’ as specified under the relevant schedule, that is, Schedule 1.
Accordingly, and given all the above, the applicant has not made a valid claim for family violence as per the Regulations.
The Tribunal recognises that the applicant’s actions demonstrate that he was aware of the requirements to meet the criteria to make a valid claim of non-judicially determined family violence. The applicant has not done so – indeed much of the evidence he has provided strongly suggests that it was the sponsor herself that has held significant fears as to her safety from the applicant. The Tribunal notes the five-year Protection Order prohibiting the applicant from approaching the sponsor imposed by the Magistrates Court. The Tribunal furthermore notes the applicant’s allegations made to the Federal Circuit Court concerning the sponsor’s purported mental state. The Tribunal notes the lack of evidence before it supporting these outlandish allegations, and the Federal Circuit Court’s decision to reject the applicant’s opposition and instead grant the divorce sought by the sponsor.
Schedule 1 of IMMI 12/116 specifies the types of evidence, as well as the detail each type of evidence must include. If such evidence is not provided, the Tribunal has no alternative other than to affirm the decision under review on the basis that a valid claim has not been made for the Tribunal to consider.
The Tribunal has provided the applicant with the opportunity to provide appropriate evidence in order to make a valid claim. The applicant has not provided evidence in the nature and form required to make a valid claim of judicially determined, or non-judicially determined, family violence. The applicant has not provided evidence specified by the Minister by instrument in writing for reg 1.24(b) of the Regulations, which requires a minimum of two items of evidence from the list in Schedule 1, and no more than one of each type of evidence listed.
Accordingly, and given all the above, the applicant has not made a valid claim for family violence as per the Regulations. The applicant does not meet cl 820.221(3).
The Tribunal would note that it is not necessary for the Tribunal to point out the deficiencies in the evidence an applicant provides for the purposes of IMM12/116: MIAC v Pham [2008] FCA 320; Doan v MICMSMA [2022] FedCFamC2G 405. In this case however, the Tribunal in considerable detail at the hearing, explained to the applicant the process of making a valid claim of non-judicial family violence. The applicant’s social worker in fact at the hearing stated she would also explain matters to the applicant: “I do understand what you are saying about the responsibility of Yuehai supplying the evidence to support what he is saying. I am happy to follow through with him and help him with that.”
The Tribunal stated that if the applicant did not provide the documentation required to make a valid claim, then the Tribunal would have no alternative but to affirm the decision under review.
At the time of decision, the applicant has made neither a judicially determined nor a non-judicially determined claim of family violence in accordance with reg 1.23. Accordingly, the Tribunal has no valid claim to consider.
Furthermore, there is no evidence before the Tribunal that the applicant meets any of the alternative criteria. There is no evidence or claim that the applicant’s former sponsor is deceased, nor that the applicant and her former sponsor meet any of the alternate criteria in relation to responsibilities for children.
Accordingly, the applicant cannot satisfy cl 820.221(1).
On the basis of the applicant’s own evidence, the Tribunal is satisfied that at the time of decision, the applicant does not continue to be sponsored for the grant of the Subclass 820 Partner visa by the sponsoring partner, who in this case is an Australian permanent resident, who sponsored the applicant for that visa.
Further, the Tribunal is not satisfied that a valid claim has been presented in accordance with Division 1.5 of the Regulations. Accordingly, the Tribunal finds that the applicant has not made a valid claim of family violence under the Act. As the applicant’s relationship with his sponsor has ceased, and he has not made a valid claim of family violence, the applicant does not meet the requirements of cl 820.221(3) for the grant of the visa. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that he meets any of the alternative criteria which includes the death of the sponsor and certain obligations and orders in relation to children. For the reasons above, the Tribunal finds that the applicant does not satisfy the criteria for the grant of the visa. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.
Accordingly, given all the above, the applicant does not meet cl 820.221.
For the reasons given, the Tribunal finds the applicant does not satisfy the criteria for the grant of the Partner (Temporary) (Class UK) visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Justin Owen
Deputy President
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.

[2023] AATA 680

14 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice