Van (Migration)

[2018] AATA 321

Van (Migration) [2018] AATA 321 (21 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nu Nhu Ngoc Van

CASE NUMBER:  1610893

DIBP REFERENCE(S):  CLF2016/16746 CLF2016/29567

MEMBER:Nicholas McGowan

DATE:21 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·     cl.801.221(6)(b) and (c)(i)(A) of Schedule 2 to the Regulations.

Statement made 21 February 2018 at 11:03am

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) visa – Alleged family violence committed by visa applicant – Expert’s opinion sought – Tribunal accepts family violence existed

LEGISLATION
Migration Act 1958, s 5F

Migration Regulations 1994, rr 1.23, 1.24, 1.25 Schedule 2 cl 801.221

CASES
Muliyana v MIAC (2010) 183 FCR 170

DECISION AND STATEMENT OF REASONS – subclass 801 visa

1. The applicant applied for the visa on 28 December 2012, and was refused by the Minister’s delegate on 11 July 2016 on the basis she did not satisfy cl.801.221. The applicant applied to the Tribunal for a review of the Minister’s delegate’s decision.

   RELEVANT LAW

2. To be granted a Subclass 801 visa, the applicant must meet, at the time of decision, one of the alternate requirements contained in the subclause listed in cl.801.221(1) of Schedule 2 to the Regulations. Relevant to this case, if the relationship with the sponsoring spouse/partner (the sponsor) has ceased, an applicant may still satisfy a criterion for the grant of this class of visa if the applicant has suffered family violence committed by the sponsor: cl.801.221(6)(b),(c).

3. Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature. Under r.1.23 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 and either the Minister is satisfied that the alleged victim has suffered domestic violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. The family violence need not have caused or contributed to the cessation of the partner relationship: Muliyana v MIAC (2010) 183 FCR 170.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The applicant appeared before the Tribunal to give evidence on January 4, 2018. The applicant was represented. An interpreter was provided.

5. In this case there is no suggestion or clam that there is a judicially determined claim of family violence.

6. In this case, the relevant evidentiary requirements to raise a non-judicial claim of family violence are in r.1.24. This requires a statutory declaration under r.1.25, and the type and number of items of evidence specified by the minister (in this case) in instrument IMMI 12/116.

7. The applicant has completed a statutory declaration (folio 69) under r.1.25 which set out the allegation of family violence and named his sponsor who he alleges committed relevant family violence. The applicant has also provided two statutory declarations by competent persons as per r.1.25.

8. On January 4, 2018 the Tribunal requested the opinion of an independent expert about whether the alleged victim has suffered family violence. The Tribunal advised the applicant’s agent it had sought that opinion, that same day. The previous opinion of an independent expert was considered by the Tribunal when deciding whether or not to seek a further opinion. As this is a de novo review, the Tribunal is of the view it is most fair and reasonable to seek a new expert’s opinion, as that expert is able to take into consideration the new oral evidence the applicant provided the Tribunal during it public hearing.

9. On 19 February 2018 the Tribunal received as assessment report (dated 18 February 2018) from an independent expert Ms Kerrilee Hollows, in which Ms Hollows states:

   It is my opinion that Ms Van has suffered family violence s allegedly perpetrated by Mr Nguyen, in accordance with the definition of family violence in the Migrations Regulations [1994].

   FINDINGS

10. Given the above, the Tribunal must take the expert’s opinion to be correct that applicant is taken to have suffered family violence. The Tribunal accepts that the relevant family violence occurred while the relationship between the applicant and the sponsor existed.

11. Further, based on all other evidence, the Tribunal is satisfied that the sponsor, who is an Australian citizen, was the ‘sponsoring partner’ of the applicant.

12. After having regard to all the circumstances of the parties relationship as set out in r.1.15A(3), the Tribunal is satisfied that the parties were in a married relationship as defined in s.5F of the Act (including being validly married to one another).

13. For all the above reasons, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

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