Zarrami (Migration)

Zarrami (Migration) [2018] AATA 5976 (17 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jalel Zarrami
CASE NUMBER:  1718077
DIBP REFERENCE(S):  OSF2012/016723 OSF2017053384
MEMBER:Catherine Carney-Orsborn
DATE:17 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa
Statement made on 17 October 2018 at 11:10am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – relationship ceased – claim of family violence committed by sponsor – statutory declaration by applicant – two independent experts and three tribunals found no relevant family violence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 375A
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23, 1.24, 1.25, Schedule 2, cl 100.221(4)(b), (c)(i)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 April 2015 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 January 2012 on the basis of his relationship with his sponsor, [Ms A]. 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 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.
The applicant was referred by the Department to an independent expert. On 14 November 2014 the independent expert found that the applicant had not suffered relevant family violence.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because he had not suffered family violence.
The matter was previously before the Tribunal on 18 May 2016. At that hearing the Tribunal having considered all of the evidence before it, and orally discussed the issues on the Department file was not satisfied for the purposes of r.1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert. On 4 July 2016, the independent expert provided an opinion that the applicant had not suffered relevant family violence. On 6 July 2016, the Tribunal sent a copy of the independent expert’s report to the applicant for his comment.
The applicant asked for an extension of time to consider and provide any comments. The Tribunal allowed that extension.
On 12 August 2016, the applicant provided a response. On 23 August 2016, the Tribunal invited the applicant to a further hearing to present to the Tribunal any new evidence.
The applicant provided new evidence and information.
On 14 September the independent expert considered the new information. He interviewed the applicant a second time and went through the issues.
The independent expert send a Part D further assessment in which he stated that after considering the further additional information his opinion has not changed. His opinion is that the applicant has not suffered relevant family violence.
On 19 September 2016, the Tribunal sent another s.359A letter enclosing the further assessment for the applicant’s comments. The applicant requested an extension to respond. The Tribunal allowed further time.
On 24 October 2016, the applicant through his representative sent submissions. Those submissions were of a general nature. They discussed the nature of family/Domestic violence. He asserted he was a victim of domestic and family violence.
No new issues were raised.
On 8 November 2016 the Tribunal affirmed the decision of the Department not to grant the applicant a Partner visa.
On the 7 August 2017 the matter was remitted by consent as there was an s375A certificate issued by the delegate on the Department file and the existence was not disclosed to the applicant in the course of the review by the Tribunal. It was found that at least some of the documents subject of the certificate were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.
The applicant appeared before the Tribunal on 18 September 2018 to give evidence and present arguments.
The applicant was assisted by an Arabic interpreter NAATI level 3. The interpreter translated from English to Arabic and from Arabic to English.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal discussed the s.375A certificates on the Department file. The Tribunal explained in plain English that the certificates were placed on the Department file and this was because the Department did not want the information referred to in the certificate to be disclosed to anyone except the Tribunal. The Tribunal explained that the first task was whether the s.375A certificate was valid.
The Tribunal explained that it has before it all of the information provided previously by the applicant to the Tribunal. The Tribunal also has the Department’s files and his previous responses.
The Tribunal asked the applicant if there was anything he wanted to say about the validity of the 375A certificates. He replied with words to the effect that if there were any papers or information which might be helpful he would like to discuss them.
He would like to know what the Department had. The Tribunal explained that the first certificate related to the first referral made by the Department to the Independent Expert whose job it was to consider whether he had suffered family violence. The Tribunal showed the referral form to the applicant.
The Department felt that its disclosure and potential circulation within the community may jeopardise the integrity of the document and the referral process. The Tribunal found that the certificate was not valid as the applicant was already aware of the first referral and had been asked to comment on the report which was the result of the first referral to an independent expert which found he had not suffered from family violence.
At the hearing the Tribunal went through the referral document with the applicant. The Tribunal said that it was of the view that the actual referral form was not relevant as the Tribunal had sought and received another independent expert report. The Tribunal showed the referral form to the applicant. He indicated that he understood it was in relation to documents he had knowledge of and consisted of a summary of his matter and copies of the documents he had provided to the Department which were discussed with him at a previous hearing heard by the same Tribunal member who was conducting the current review ordered by the Court.
The Tribunal asked if there was anything he wanted to add. He indicated he was aware of that information. He replied with words to the effect that he felt he had been treated unjustly by the independent experts not making a finding he was a victim of family violence but had no further information to provide.
The Tribunal then discussed the second certificate which related to a notification made by the sponsor telling the Department that the relationship had ended and he had left the marital home in 2012.
The Tribunal is of the view that the certificate 375A is valid as it was to protect information given in confidence by the sponsor which was adverse to the applicant and that its disclosure was not in the public interest as in some instances the disclosure could jeopardise the safety or welfare of the sponsor. The Tribunal agrees that its disclosure would be a breach of confidence and it is in the public interest to protect the former spouse however the Tribunal pointed out that this was information which the applicant knew about as he himself had told the Tribunal in previous hearings about the separation and the interactions with the former spouse.
The applicant indicated that he was aware that the relationship had ended and the sponsor had withdrawn her sponsorship of him and was not assisting him. He responded with words to the effect that he knew about the above information as she had told him orally however he did not think the relationship had officially ended and he considered himself still married as there had been no divorce according to his culture. The Tribunal pointed out that his evidence is that the relationship ended some time ago and he suffered from family violence.
He agreed that is the case.
He again stated that the Independent Experts had treated him unjustly. He said he had provided the meaning of family violence to the experts and they had no idea what stress he was under.
The Tribunal said that the information he had provided on the meaning of family violence was on the previous file. He stated he had no further information to add.
The Tribunal pointed out that the Independent Expert report is still valid and still stands. The Tribunal asked if he had any further information or evidence.
The applicant became distressed, angry and emotional. He indicated he would like further time to provide further information. The Tribunal allowed the applicant further time to provide information and evidence to the Tribunal.
The Tribunal allowed until the 8 October 2018.
The Tribunal indicated that it had covered all the issues about the certificates and information and stated that it would wait to receive any further information or evidence and then proceed to a decision.
No further information was provided.
In the present case, the applicant claims the relationship with [Ms A] the visa sponsor has ceased, and he has been the victim of family violence.
The applicant had been granted a subclass 309 on 22 January 2012. After considering all the evidence and the responses provided by the applicant to the Department and the Tribunal is satisfied that a spousal relationship existed.
On the basis of the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.
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).
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 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.
The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116).
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).
The applicant provided a statutory declaration under r.1.25. He named the sponsor as the person who is alleged to have committed the relevant family violence. The applicant further provided a medical report from a general practitioner who stated that he was treating the applicant for mental problems related to his family problems. A report from a psychologist was also provided. The applicant provided a psychologist report from Mr Mahmoud in which he stated that he had treated the applicant under a Mental Health Care Plan. He claimed that in his opinion the applicant was subject to family violence, he identified the perpetrator as the sponsor and gave reasons for his opinion.
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.
Has the applicant suffered family violence?
The Tribunal took evidence from the applicant at a total of (including this review) three hearings. The applicant at those hearings described a very short period of marriage, an unhappy separation and marriage break-down. He said that his sponsor swore at him and refused to let him sleep in the marital bed with her. He said that her harsh words and actions have caused him stress. The Tribunal considers that the applicant may have felt stressed due to his marriage breakdown and the effect on his immigration status however is not satisfied that he suffered family violence. The Tribunal further considered the statutory declarations that were supplied and the reports from the psychologist.
At the hearing in relation to this review held on the 18 September 2018 the Tribunal asked if there was any new evidence the applicant wanted to add about his claim of family violence. The Tribunal pointed out to the applicant that the previous Independent Expert report was valid. The applicant indicated he was stressed about the outcome and his life was being made difficult. He felt the reports and sponsor had ruined his life in Australia. He did not provide any new evidence that had not been before the Tribunal previously. He referred to earlier submissions he supplied in relation to men suffering from family violence.
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.
In accordance with that regulation, the Tribunal had previously sought the opinion of an independent expert. On 4 July 2016, the independent expert provided an opinion that the applicant had not suffered relevant family violence. On 6 July 2016, the Tribunal sent a copy of the independent expert’s report to the applicant for his comment.
The applicant asked for an extension of time to consider and provide any comments. The Tribunal allowed that extension.
On 12 August 2016, the applicant provided a response. In the response he re-iterated the claimed abuse he had suffered. He stated that the independent expert had referred to him stating his wife watched horror movies. He stated that when they were watching a horror movie his ex-wife went to the kitchen and when he went to get a glass of water she was holding a knife and her face looked pale and scary. He said this made him feel scared. He provided a copy of the same psychological report dated 7 January 2014 which had earlier been provided and considered by the Tribunal and independent expert. The applicant claimed that he believed that the interpreter misunderstood him as he spoke with a Tunisian dialect.
On 23 August 2016, the Tribunal invited the applicant to a further hearing to present to the Tribunal any new evidence. He stated that he did not remember that his ex-wife had been watching horror movies and when he went to the kitchen she was holding a knife. He said she looked scary and this caused him to feel scared and feared for his life. He stated that there were problems with interpreting.
As this was a new claim and the applicant had previously in his numerous statements and interviews with two independent experts not raised this claim the Tribunal referred this back to the independent expert for his consideration.
On 14 September the independent expert considered the new information. He interviewed the applicant a second time and went through the issues. An acknowledgement that an interpreter had been used was provided to the Tribunal signed by the applicant. In that document the applicant acknowledged he understood the interpreter, he had a fair and reasonable opportunity to present his case and if he felt uncomfortable he would raise this with his case officer or migration agent.
The independent expert send a Part D further assessment in which he stated that after considering the further additional information his opinion has not changed. His opinion is that the applicant has not suffered relevant family violence.
On 19 September 2016, the Tribunal sent another s.359A letter enclosing the further assessment for the applicant’s comments. The applicant requested an extension to respond. The Tribunal allowed further time.
On 24 October 2016, the applicant through his representative sent submissions. Those submissions were of a general nature. They discussed the nature of family/Domestic violence. He asserted he was a victim of domestic and family violence.
No new issues were raised.
The applicant has been assessed by two different independent experts and had three interviews. He has been given three opportunities to comment in writing on the separate independent experts opinions he has not suffered family violence. The Tribunal conducted hearings for the applicant to provide any new information.
In response to the independent expert’s last report, sent to the applicant on 19 September 2016, the applicant provided general information on family violence.
At the hearing in relation to this review on the 18 September 2018 the Tribunal pointed out that the Independent Expert’s report was still valid and asked if he had any new evidence it would like the Tribunal to consider. The applicant indicated he felt he had been treated unfairly by the Expert and his sponsor. He asked for further time to provide information. The Tribunal allowed further time. No further information or evidence was provided.
As no new information or evidence was provided the Tribunal will now consider whether the expert’s opinion was properly made.
The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.
Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.

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.
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
The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa
Catherine Carney-Orsborn
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.

[2018] AATA 5976

17 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice