Derewlany (Member) [2004] MRTA 7532 (12 November 2004)

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate) to refuse to grant a Partner (Migrant) (Class BC) visa. The visa applicant applied for a Partner (Migrant) (Class BC) visa on 11 September 2002. The delegate's decision to refuse to grant the visa was made on 24 April 2003.

1. The visa applicant lodged an application for review to the Tribunal on 7 May 2003. The decision to refuse the visa is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

1. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.
2. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.
3. The criteria and policy immediately relevant to this review are:

Item 1129 Partner (Migrant) (Class BC) of Schedule 1 to the Regulations

Part 100 of Schedule 2 to the Regulations

Procedures Advice Manual 3: Regulation 1.15A - Interpretation - Spouse

Procedures Advice Manual 3: Division 1.5 - Special Provisions Relating to Domestic Violence

Procedural Advice Manual 3: Schedule 2 - Domestic Violence

Malik v Minister for Immigration and Multicultural Affairs [2000] FCA 562

Morgan v Minister for Immigration and Multicultural Affairs [1999] FCA 1059

Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482

Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279

Cakmak v Minister for Immigration and Multicultural Affairs [2003] FCAFC 257

1. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

1. The visa applicant was nominated in connection with the subclass 100 (Spouse) visa by Ms A who is an Australian citizen.
2. The visa applicant claims to have first had contact with the nominator in June 2000 when they began communicating via the telephone and letters. They began a relationship in 12 August 2002 in country B and they married in 3 September 2002.
3. The visa applicant was granted a subclass 309 visa on 27 October 2002 and entered Australia on 12 November 2002.
4. On 20 January 2003, the Department received a letter from the sponsor, Ms A, in which she stated that her relationship with the visa applicant's was no longer continuing and that she was withdrawing her sponsorship of the visa applicant.
5. The Department wrote to the visa applicant on 23 January 2003, advising that they had received information that the relationship on which his application was based was no longer continuing. The letter stated that in theses circumstances there were 3 grounds in which he may continue to be considered for the grant of a permanent visa on spouse grounds. The 3 grounds were outlined in the letter and the visa applicant was invited to respond with any claims within 28 calendar days.
6. The Department received a submission, in response to its letter, on 25 February 2003. The visa applicant submitted that he had been subjected to domestic violence in the form of verbal and psychological abuse and also threatened with physical assault. The visa applicant provided the following evidence in support of his claims:
   • A statutory declaration under the domestic violence provisions, completed by the visa applicant.
   • A statutory declaration under the domestic violence provisions from Dr C, a clinical psychologist.
   • A statutory declaration under the domestic violence provisions from Ms D, a social worker.
7. The delegate stated that the visa was not granted on the basis that the delegate found that the visa applicant did not meet subclause 100.221(4). Specifically the delegate found that the statutory declaration from Ms D did not support the visa applicant's claim to have been the victim of domestic violence perpetrated by the sponsoring spouse.
8. The visa applicant stated when lodging the application for review that his case is a genuine case of domestic violence as he suffered verbal abuse at the hands of his sponsoring spouse.
9. On 26 March 2004 the Tribunal invited the visa applicant to comment on information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The information related to the statutory declarations of the visa applicant and Ms D.
10. The visa applicant provided comments and additional information in response to the Tribunal's letter. The information included a statement by Ms D dated 29 March 2004 confirming that she was still of the opinion that Ms A was the perpetrator of domestic violence against the visa applicant.
11. The Tribunal held a hearing on 2 September 2004 at which the visa applicant gave evidence. The visa applicant confirmed that his claim of having suffered domestic violence perpetrated by Ms A was based on his statutory declaration dated 6 February 2003, the statutory declaration by Dr C dated 17 February 2003 (and attached report dated 18 February 2003), and the statutory declaration (and attached report) by Ms D dated 24 February 2003.

1. At the time of application the visa applicant was validly sponsored by Ms A who is an Australian citizen.
2. At the time the visa application was lodged, Partner (Migrant) (Class BC) contained the following subclasses: subclass 100 (Spouse) and 110 (Interdependency). The only subclass in respect of which any claims have been advanced is subclass 100 (Spouse). The Tribunal finds on the evidence before it that the visa applicant does not meet key criteria for subclass 110.
3. There are no criteria for a Subclass 100 visa that must be met at the time of application.
4. The visa applicant was granted a Class UF (Subclass 309) visa on 27 October 2002, on the basis of the Department finding that he was the spouse of the sponsoring spouse pursuant to regulation 1.15A.
5. At the time of decision the visa applicant must generally continue to meet the requirements set out in subclause 100.221(2), including that he continues to be the spouse of the sponsoring spouse, unless certain other provisions set out in clause 100.221 are met. These provisions include the provision relating to domestic violence.
6. The Tribunal is satisfied on the basis of the evidence that that at the time of this decision the relationship between the visa applicant and the sponsor has ceased. The sponsor Ms A withdrew her sponsorship of the visa applicant in a letter dated 20 January 2003. The visa applicant therefore fails to satisfy subclause 100.221(2).
7. The visa applicant has claimed that domestic violence has been perpetrated against him by the sponsor.
8. Subclause 100.221(4) is the relevant subclause in this case, and states as follows:

(4) The applicant meets the requirements of this subclause if:

(a) the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either:

(ii) is no longer the holder of that visa because the visa:

(B) has ceased to be in effect because the applicant:

(I) was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or

(II) left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and

(b) the applicant would meet the requirements of subclause (2) except that the relationship between the applicant and the sponsoring spouse has ceased; and

(c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a)- either or both of the following circumstances applies:

(B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them;

has suffered domestic violence committed by the sponsoring spouse;

(A) has custody or joint custody of, or access to; or

(B) has a residence order or contact order made under the Family Law Act 1975 relating to;

at least 1 child in respect of whom the sponsoring spouse:

(C) has been granted joint custody or access by a court; or

(D) has a residence order or contact order made under the Family Law Act 1975; or

(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

1. The Tribunal will therefore first determine whether domestic violence has occurred in accordance with the provisions in Division 1.5.
2. Division 1.5 of the Regulations contains a particular regime relating to domestic violence and its method of proof for the purposes of the Regulations which the Tribunal is bound to apply. Under regulations 1.22 and 1.23 domestic violence is to be taken to have occurred when the requisite evidence prescribed under the regulations alleging that domestic violence has occurred, has been provided to the Tribunal. Regulation 1.24 prescribes that evidence can be provided in the form of statutory declarations. The statutory declarations must satisfy the requirements set out in regulations 1.25 and 1.26.
3. The Federal Court in the matters of Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482, and Ibrahim v Minister for Immigration and Multicultural Affairs [2002] FCA 1279 stated that it is not the role of the Tribunal to assess the credibility of the claims of domestic violence that have been made by the applicant. The role of making an assessment as to the truth or otherwise of the claims has been entrusted, through the operation of regulation 1.23, to competent persons. This approach to the task of the Tribunal was clarified more recently by the Full Federal Court in Cakmak v Minister for Immigration and Multicultural Affairs [2003] FCAFC 257. In this case the Court stated that the task for the Tribunal is to ask itself whether there has been presented the evidence called for by regulations 1.23(1)(g), 1.23(2)(b), 1.24, 1.25 and 1.26.
4. The effect of regulation 1.23 and the case law authority in Cakmak in particular is that if presented with documentary evidence that satisfies the requirements of regulations 1.23(g), 1.23(2)(b), 1.24, 1.25 and 1.26, the Tribunal must accept that the alleged victim has suffered domestic violence. The Tribunal does not undertake any subjective assessment or judgment as to the extent of the domestic violence, or its part in the breakdown of the spousal or interdependent relationship.
5. When examining the statutory declarations, the Full Federal Court in Cakmak said the Tribunal must ask itself the following questions: a) Is the statutory declaration made by the spouse of the alleged perpetrator? b) Does it set out the allegations of "relevant domestic violence"? c) Does it name the person alleged to have committed the "relevant domestic violence"? d) Is the statutory declaration a presentation of evidence that the alleged victim has suffered violence or the threat of violence to him or her or his or her property, that caused or causes the alleged victim (or a member of his or her family) to fear for or be apprehensive about the alleged victim's personal well being or safety?
6. In regard to (d) the Tribunal notes that "violence," according to the Full Federal Court in Cakmak, must involve an act, or threat of application of, physical force. The declarations must provide evidence that the violence caused fear for, or apprehension about, the victim's personal well being or safety. "Emotional" or "psychological violence", of itself, would not be sufficient to meet the requirements in the Regulations. In Cakmak, the Court also held that the violence or threat of violence must be the direct act of the spouse of the applicant.
7. Regulation 1.23 deals with when a person is taken to have suffered or committed domestic violence and provides:

(a) a person (the alleged victim) is taken to have suffered domestic violence; and

(b) another person (the alleged perpetrator) is taken to have committed domestic violence in relation to the alleged victim;

(c) 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; or

(d) 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, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that 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; or

(e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or

(f) 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; or

(g) if the alleged victim is a person referred to in subregulation (2) - the alleged victim or another person on the alleged victim's behalf presents evidence in accordance with regulation 1.24 that:

(i) the alleged victim has suffered relevant domestic violence; and

(ii) the alleged perpetrator has committed that relevant domestic violence.

(C) both the alleged perpetrator and his or her spouse; or

(D) a person in an interdependent relationship with the alleged perpetrator;

(iii) a member of the family unit of a spouse of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse);

(iv) a person who is in an interdependent relationship with the alleged perpetrator; and

(b) a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety.

1. Regulation 1.24 deals with evidence and provides:

(1) The evidence referred to in paragraph 1.23(1)(g) is:

(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:

(i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and

(ii) a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory; or

(b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.

(2) A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:

(a) the same subparagraph of paragraph (a) of the definition of competent person; or

1. On 6 February 2003, the visa applicant made a statutory declaration alleging that domestic violence had been perpetrated against him by Ms A, the sponsor. The Tribunal is satisfied that this statutory declaration was made by the spouse of the alleged perpetrator as required by subregulation 1.25(2), and that it named the sponsor, Ms A, as the person alleged to have committed the relevant domestic violence, and that in an attached declaration the visa applicant set out the allegation of domestic violence:
2. The visa applicant's covering declaration states that he was subject to 'verbal abuse, that was [sic] demonstrated itself in emotional and psychological abuse. I was also subjected to threats of physical abuse by her brother'. In an attached declaration the visa applicant described how his relationship with the sponsor, Ms A changed after his arrival in Australia. He stated that he and Ms A lived with Ms A's parents. Shortly after his arrival in Australia he noticed that his mother in law started ordering him about and would swear at him and behave in a threatening manner. He tried to persuade Ms A to move out but felt that ultimately Ms A sided with her mother. The visa applicant stated that Ms A's behaviour towards him became worse, and that she started swearing at him. He stated that Ms A threatened him with her brothers. The visa applicant stated that as a result of Ms A's 'verbal abuse which took the forms of emotional, psychological abuse as well as threats' he felt anxious and depressed.
3. The Tribunal is not satisfied that the visa applicant's statutory declarations have established that the sponsor, Ms A directly committed an act of physical force or threatened the direct application of physical force against the visa applicant. The visa applicant has referred to threats of physical abuse from Ms A's brother(s). The Tribunal finds that this reference relates to the threat of violence from third parties, and is not satisfied that it establishes that Ms A directly committed an act of physical force or directly threatened that she would apply physical force against the visa applicant. The Tribunal also is not satisfied that the visa applicant's statements that he feared problems if something happened between him and Ms A's brothers, establishes that Ms A committed or threatened to commit physical violence against him.
4. Applying the principles established in Cakmak, the Tribunal is not satisfied that the visa applicant has established through his statutory declarations that he has suffered violence or the threat of violence to him or his property from the spouse, Ms A, that has caused him to fear for his personal well being or safety. The Tribunal is not satisfied that the visa applicant's statutory declaration establishes that he is the victim of relevant domestic violence within the meaning of paragraph 1.23(2)(b).
5. The Tribunal has considered the statutory declaration (and attached report), dated 24 February 2003, by Ms D. The Tribunal is satisfied that Ms D is a competent person as prescribed by regulation 1.21 of the regulations, as she is a person who is eligible to be a member of the Australian Association of Social Workers and is performing the duties of a social worker.
6. The Tribunal is satisfied that Ms D has named the sponsor, Ms A, as the person alleged to have committed domestic violence against the visa applicant. Ms D's declaration and report gives an opinion that the visa applicant has suffered verbal and psychological abuse, and stated in particular the role that the visa applicant's in-laws apparently played in such abuse. The Tribunal is not satisfied that Ms D's opinion establishes that the sponsor Ms A had committed an act of physical force or had threatened that she would commit an act of physical force against the visa applicant.
7. In her declaration and report Ms D stated that the visa applicant informed that he had been threatened with physical violence if he did not comply with his in-laws' orders, 'stating that her brother would shoot him if they didn't do what they said and later in relation to whether her [sic] would divorce or not'. The Tribunal finds that although Ms D reported that the visa applicant informed her that he was threatened with physical violence by his wife, the reference to threats of physical violence relates to violence by third parties, the wife's brothers. The Tribunal finds that Ms D's report, and the summary in her statutory declaration of the evidence on which she bases her opinion, conclude that the visa applicant had suffered verbal and psychological abuse or violence. The Tribunal is not satisfied that Ms D's statutory declaration and attached report establish that Ms A had directly applied physical force or had threatened to directly apply physical force against the visa applicant.
8. The Tribunal has received a further statement from Ms D dated 29 March 2004 confirming her professional opinion that the visa applicant suffered domestic violence perpetrated by Ms A. The Tribunal finds that this statement does not add to the evidence previously provided by Ms D. The Tribunal finds for the reasons above that the statutory declaration (and attached report) from Ms D does not establish that relevant domestic violence has been suffered by the visa applicant within the meaning of paragraph 1.23(2)(b).
9. A statutory declaration from Dr C under regulation 1.26 has also been submitted. The visa applicant has confirmed that he is basing his claim on the evidence from Ms D and Dr C as competent persons. The Tribunal has not made a specific finding in relation to the statutory declaration by Dr C, as it has found that the visa applicant's and Ms D's evidence do not establish that relevant domestic violence has been suffered by the visa applicant within the meaning of paragraph 1.23(2)(b). On that basis the Tribunal finds that the requirements of regulation 1.24 have not been met.
10. The Tribunal accordingly finds that the visa applicant does not satisfy the requirements of paragraph 1.23(1)(g). The Tribunal finds on the evidence before it that the visa applicant does not satisfy paragraphs 1.23(1)(c), (d), (e) or (f). The Tribunal finds that the requirements of regulation 1.23 have not been met, and therefore is not satisfied that the visa applicant is taken to have suffered domestic violence committed by the sponsor.
11. The Tribunal finds that the visa applicant fails to satisfy subclause 100.221(4)(c)(i). The Tribunal finds that there is no evidence that the visa applicant meets subclause 100.221(4)(c)(ii). The visa applicant therefore fails to satisfy subclause 100.221(4).
12. The Tribunal finds on the evidence before it that the visa applicant does not satisfy subclauses 100.221(3), or (4A). The visa applicant therefore fails to satisfy clause 100.221, an essential criterion for the grant of a Subclass 100 visa.

1. Given these findings, and earlier findings in respect of subclass 110, the Tribunal has no alternative but to affirm the decision under review. The visa applicant does not meet essential criteria for the grant of a Partner (Migrant) (Class BC) visa.

1. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Partner (Migrant) (Class BC) visa.